HomeMy WebLinkAbout2016-02-22 - AGENDA REPORTS - LONG RANGE MGMT PLAN IMPLEMENTATION- RDA BLOCK (2)0
Agenda Item: 3
CITY OF SANTA CLARITA
OVERSIGHT BOARD TO THE FORMER
REDEVELOPMENT AGENCY OF THE CITY OF SANTA
CLARITA
AGENDA REPORT
NEW BUSINESS
APPROVAL:
DATE: February 22, 2016
SUBJECT: LONG RANGE PROPERTY MANAGEMENT PLAN
IMPLEMENTATION - REDEVELOPMENT BLOCK
DEPARTMENT: Community Development
PRESENTER: Jason Crawford
RECOMMENDED ACTION
Oversight Board:
1. Adopt Resolution No. 16-04 approving the Purchase and Sale Agreement with Old
Town -Main, LLC, for the proposed Mixed -Use Project;
2. Adopt Resolution No. 16-05 approving the Purchase, Sale and Grant Agreement with
Laemmle Newhall, LLC, and the City of Santa Clarita, for the proposed Laemmle
Theatre Project; and
3. Adopt Resolution No. 16-06 approving the transfer of the public parking property from
the Successor Agency to City of Santa Clarita at no cost pursuant to the Department of
Finance approved Long Range Property Management Plan Amendment.
BACKGROUND
The Redevelopment Agency of the City of Santa Clarita (Redevelopment Agency), in
partnership with the City of Santa Clarita (City), acquired a block of property in Old Town
Newhall in November 2008. The site encompasses one full City block, directly across the street
from the Old Town Newhall Library, bounded by Lyons Avenue to the north, Railroad Avenue
to the east, 9th Street to the south, and Main Street to the west (the Redevelopment Block). The
Redevelopment Block was purchased with the intent of a public-private development partnership
in the future that was in line with the vision of the Old Town Newhall Specific Plan (Specific
Plan), which was adopted by City Council in 2005. The Specific Plan envisioned, among other
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things, that at the north end of Main Street, a six -screen theater would serve as an "anchor" to a
project that, combined with retail space, residential units, and a public parking structure, would
create consumer activity, and further the Arts and Entertainment District vision in the area
As a result of the dissolution of the Redevelopment Agency, the Redevelopment Block now has
multiple beneficial ownership interests due to the type of funds used to purchase the property,
and includes: the City; the City as the Housing Successor Agency to the former Redevelopment
Agency (Housing Successor); and the Successor Agency to the former Redevelopment Agency
(Successor Agency). Pursuant to the actions of the City Council and the Successor Agency
Board on July 14, 2015, and subsequently confirmed by the Oversight Board and the California
Department of Finance (DOE), fee title to the entire property is currently held with the Successor
Agency.
The Redevelopment Dissolution Bills require that any property that was owned either wholly or
in part by the former Redevelopment Agency, with the exception of those determined to be
housing assets of the Housing Successor or those constructed and used as a governmental
purpose and transferred to the City in accordance with Health and Safety Code Section 34181
(a)(1), are subject to a Long Range Property Management Plan (LRPMP), which governs the
disposition and use of Redevelopment Agency properties. The LRPMP, which was approved by
the Oversight Board on December 17, 2013, and approved by the DOE on June 27, 2014,
indicated that the Redevelopment Block should be listed for sale in order to find a developer to
maximize the longterm value of the property.
As part of the LRPMP submittal, the Oversight Board and the DOE also approved a set of
property disposition procedures to guide the process that must be undertaken to sell the property.
These procedures included a requirement that potential purchasers submit a proposal for the
development of the property that is consistent with the Specific Plan and the General Plan. The
purpose of this requirement, and the other requirements in the procedures, was to drive the sale
of the property to a buyer that will develop the property in a timely manner, meet the ultimate
goals for the revitalization of the Old Town Newhall area, and provide the best benefit for the
taxing entities over the long term, not just at the time of the property sale.
RLQ Process
Based on the property disposition procedures, a Request for Qualifications (RFQ) to find one or
more development partners was released in November 2014. The RFQ was delivered to over 98
development firms, as well as being posted on the City's website. The RFQ asked potential
development partners to submit proposals that would provide for a high quality, mixed-use
project on the Redevelopment Block that combines three priorities as outlined in the Specific
Plan: a theater component, retail and residential uses, and public parking.
The RFQ process included a two -round submittal and evaluation approach, with the following
elements:
Round One: Respondents were required to provide a letter of introduction, identify key
team development members, share relevant project experience, outline details related to
how they intend to approach the projects, provide financial data to ensure they have the
capital necessary to build this project, and references.
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Round Two: Selected developers were requested to submit a Letter of Intent that
identifies the development proposal, including land uses, massing, financing structure,
estimated property value, and any other considerations for the Successor Agency to
evaluate as part of their proposal.
First round responses were due on January 30, 2015, and five responses were received and
evaluated by staff and Kosmont Companies, the consultant retained by the Successor Agency to
assist with the RFQ process. Kosmont Companies is a nationally recognized expert in economic
development and real estate projects involving government and private sector partnerships. Their
scope of services includes assisting public agencies related to economic development, planning,
funding and financing, and public/private partnerships, among others.
Based on the review completed by staff and Kosmont Companies, three proposals were
eliminated as they did not include all three components requested, and two were moved forward
to the second round. Both developers provided a response to the second round of the RFQ
process, and staff, along with Kosmont Companies, evaluated those responses based on
development timelines, the proposed development profile, proposed acquisition structure, public
amenities to be provided, public parking availability, a financing mechanism to support the
development, and the financial impact for the City, the Successor Agency, and the taxing entities
as a result of the ultimate development of the site.
On July 14, 2015, the City Council and the Successor Agency Board authorized staff to enter
into Exclusive Negotiation Agreements (ENA) with Laemmle Theatres for the development of
the theatre component and Serrano Development Group and Pacific Coast Housing Development
for the development of the Mixed -Use Project. The term of these agreements was 90 days (July
14, 2015 - October 11, 2015). Pursuant to the terms of these agreements, the Executive
Director/City Manager authorized a 90 -day extension to the ENA period (October 12, 2015 -
January 9, 2016). During this ENA period, staff worked closely with the chosen developers,
various consultants, and legal counsel to review, analyze, and produce a project for the City
Council and Successor Agency Board to consider that will ultimately provide the greatest benefit
to the community.
Redevelopment Block Projects
Keeping in mind the vision of the Specific Plan and the three components that were requested,
including a theatre, a mixed-use project, and public parking, the City Council and Successor
Agency Board approved the division of the property into three separate developments: the
Mixed -Use Project; the Laemmle Theatre Project; and the Parking Structure based on the
attached proposed site plan.
As part of the preparation of the LRPMP, staff hired Lea and Associates in 2013 to complete an
appraisal that valued the land at $2.2 million. In mid-November, staff reengaged Lea and
Associates to update that appraisal based on current market conditions, as well as known site
development constraints.
During the developer's due diligence period in the ENA, it was determined there were
environmental concerns on the Redevelopment Block, which appear to be primarily impacting
the property proposed for the Mixed -Use Project, including three Underground Storage Tanks
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(USTs), one concrete filled clarifier, one vehicle hoist, one vehicle wash sump, one vehicle
frame straightener, and asbestos floor tiles associated with prior uses on the Redevelopment
Block. The developer of the Mixed -Use Project facilitated an update to the Phase II
environmental assessment and received an estimated cost to remediate the concerns. Those
documents were provided to the appraiser in order to obtain a fair price for the property with
known environmental constraints.
The total fair market value of the property was determined to be $2.1 million. This included an
overall land value of $2.6 million less $500,000 for the known and potential for unknown
environmental constraints on the Redevelopment Block.
Mixed -Use Project
Old Town -Main, LLC, (OTM) will purchase 34,325 square feet of the Redevelopment Block
at fair market value to develop a mixed-use project oriented towards Main Street and Lyons
Avenue. Because the environmental constraints on the Redevelopment Block appear to be
primarily located on the parcel proposed for this project, and OTM will undertake the work to
remedy these known environmental conditions prior to the close of escrow, the adjustment to the
property's value was applied to the Mixed -Use Project transaction. The Successor Agency will
need to finalize the terms of a right of entry agreement to allow Old Town -Main, LLC, to have
access to the Redevelopment Block and undertake and complete the environmental remediation
work prior to the close of escrow. The total purchase price based on the appraisal dated
December 16, 2015, is $692,509.
The proposed Mixed -Use Project will provide an estimated 20,240 square feet of retail space, 46
multi -family units ranging from one bedroom to three bedrooms, and public plaza space. The
project will also provide 85 parking spaces reserved only for the residential units in an onsite
subterranean parking garage. The Old Town Newhall Specific Plan requires that 1.5 parking
spaces be provided for every unit of multi -family residential. The developers are proposing to
exceed that requirement and provide 1.85 parking spaces for every unit. This equates to each
two- and three-bedroom units having two parking spaces and approximately half of the one -
bedroom units having two parking spaces. The remainder of the one -bedroom units will have
one parking space. No visitor parking for the residential component or parking for the retail
component of the project is required to be provided in conformance with the Specific Plan. These
needs were accounted for in the parking study, discussed later in this agenda report.
To maximize the overall development of the Redevelopment Block, OTM is seeking to purchase
a parking access easement through the proposed public parking structure property for the
purpose of accessing the residential subterranean parking. The parking structure as proposed
will include one level of subterranean parking and five levels of at -grade and above parking.
This easement will allow OTM to access their residential parking by placing a gate at the
property line between the City's parking structure and the OTM parking area on the subterranean
level. Residents of the residential component of the Mixed -Use Project will then access their
parking area by entering the City's parking structure, following the demarcations to go to the
subterranean level, and then accessing their assigned parking area.
OTM is not requesting any financial assistance from the City or the Successor Agency to
complete the project. OTM will purchase the property for fair market value, purchase the
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required parking access easement at fair market value, pay all required project entitlement and
permit processing fees and development impact fees. Pursuant to the Purchase and Sale
Agreement, escrow fees will be shared between the developer and the Successor Agency, which
is typical for real estate transactions.
The property disposition procedures directed Successor Agency staff to evaluate the
qualifications of the proposed development partners including their financial capacity to
undertake the project, and the probability of successful implementation of the proposal. Kosmont
Companies was retained to review the proforma provided by the developer and complete an
analysis of this type of project in the market place. Staff wanted assurance that the developers
had a sound financial understanding of the market place and that the project would be viable to
be built as proposed. Kosmont Companies concluded that the developer's assumptions for
constructions costs, operating revenue, operating expenditures, and risk-adjusted return are
reasonable given the current local market and economic conditions. The report completed by
Kosmont Companies is attached.
Laemmle Theatres
Laemmle Theatres is proposing to purchase 12,680 square feet of the Redevelopment Block to
develop a two-story, 17,688 square -foot art house theatre and 2,293 square feet of retail space.
The theatre is proposed to include seven screens and between 475-525 seats, in addition to public
art space. The final seat count will be determined as they proceed through the entitlement
process. Pursuant to the Old Town Newhall Specific Plan, no parking is required to be provided
by this project.
As part of their initial proposal in June 2015, Laemmle Theatres requested $4,596,880 in
financial assistance from the City with an operating covenant that would ensure they remained a
theater for a period of at least 5 years. Through the negotiation process, staff was able to reduce
this amount to $3,420,525, which is broken down into the following components:
Property Purchase Price
$440,525
Development Fees
$400,000
Site Preparation
$600,000
Operating Covenant
$1,980,000
Total City Assistance
$3,420,525
As part of the overall economic development package for Laemmle, the City will pay the cost of
the property, which was appraised at $440,525. The City will deposit those funds into escrow at
the time of close of escrow.
Additionally, the City will pay the development fees for the project on Laemmle's behalf at the
time they are required to be paid, up to a maximum amount of $400,000. These fees include
costs such as Planning and Building & Safety fees associated with the entitlement process and
building permit issuance. Under the terms of the Purchase and Sale Agreement, Laemmle is also
eligible to be reimbursed up to a maximum amount of $600,000 for site preparation costs. Site
preparation costs include site clearance, grading, relocating utilities, and required off-site
improvements. In the event that development fees are below the allocated amount of $400,000,
up to a maximum of 20% of those funds may be reallocated towards site preparation costs.
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The City will also provide a one-time payment of $1,980,000 to Laemmle Theatres in exchange
for an Operating Covenant that guarantees that the theatre will operate as a Laemmle Theatre for
a period of at least 15 years with a minimum of six screens. After year seven, the Operating
Covenant allows Laemmle to convert some of their screens into either retail or office space. If
they exercise that option, Laemmle is still required to maintain a minimum of four theatre
screens. The City would provide this one-time payment into escrow and it would be provided to
Laemmle at the time the project has finished construction and is deemed complete. In the event
of default by Laemmle related to the Operating Covenant, the City is entitled to be repaid a
portion of the City Assistance that will vary depending on how long Laemmle has been operating
at the time of default. Thus, if Laemmle were to default during the first year of the 15 year
operating period, the amount to be repaid would nearly equate the total amount of the City
Assistance, whereas if the default occurred in the 14th year, the amount due would be a smaller
fraction of the City Assistance in recognition of the many years of operation in compliance with
the Operating Covenant.
The Operating Covenant will be recorded against the property and will appear as an
encumbrance on the property. Therefore, if there was a default and Laemmle did not repay that
portion of the City Assistance due under the Operating Covenant and tried to sell the property,
the Operating Covenant would still appear as an encumbrance to title and Laemmle would not be
able to sell the property without obtaining a release of the Operating Covenant from the City; a
release that the City would only provide on the condition of paying that amount of the City
Assistance due as a result of the breach of the covenant. Thus, Laemmle would be forced to
repay the City the amortized amount remaining on the City Assistance in order to obtain a
release of the Operating Covenant as an encumbrance. Alternatively, if the amount of City
Assistance due was not paid, the City could consider bringing an action for breach of contract
and it is worth noting the Operating Covenant does contain a provision for an award of attorney
fees to the prevailing party. However, it should be noted that in the event Laemmle were to
default on its financing that is secured by the property, the Operating Covenant and its
obligations could be eliminated through foreclosure. Further, if Laemmle were to default under
the Operating Covenant by not operating the property as a theatre and thereafter filed for
bankruptcy protection, it is likely that the obligation to repay the amount of City Assistance due
could be discharged. Additionally, even if Laemmle was not in default under the Operating
Covenant but filed for bankruptcy protection, it is unclear whether the obligation to operate the
property asset as a theatre in accordance with the Operating Covenant could be impacted.
As part of the implementation of the property disposition procedures, similar to the Mixed Use
Project mentioned above, Kosmont Companies was hired to complete an analysis of the project,
specifically the proforma for the project, as well as how the requested subsidy compares in the
marketplace. Kosmont Companies determined that the subsidy being contemplated is in line
with other public subsidies provided to Laemmle Theatres in Southern California. In addition,
Kosmont Companies estimates that the projects collectively will generate direct and indirect
sales and property tax to pay for the proposed subsidy by 2032, or year 15 of operation, which is
in line with the 15 year operating covenant proposed. The report completed by Kosmont
Companies is attached.
Additionally, the property disposition procedures state that the Successor Agency should
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evaluate the estimated cost of the City's financial involvement and ensure the availability of
sufficient City funds to pay such costs. As part of the City Council's action on this project at the
February 9, 2016 City Council meeting, City funds in the amount of $3,420,525 was
appropriated and is available to be contributed to this project.
Parking Structure
The final development of the Redevelopment Block is the Parking Structure, to be completed by
the City of Santa Clarita. The Specific Plan calls for two public parking structures with
approximately 400 spaces each to be built in the Main Street area as a public infrastructure
investment to serve the entire business district.
The parking structure envisioned on this site is proposed to be one level subterranean and five
stories above grade, with a maximum height of 55 feet. This achieves a 400 parking stall count,
while ensuring the structure is consistent with the height of the Old Town Newhall Library. The
estimated investment of the City related to the parking structure is approximately $15.2 million.
As per the City Council's direction at the February 9, 2016 City Council meeting, the City has
embarked on a design -build process for the structure. An RFP is currently out soliciting bridging
architect and construction support services. The selected firm will begin the design of the
parking structure so an RFP for a design/build team can be solicited. It is the City's hope that a
design/build entity is selected in Fall 2016.
On December 9, 2015, the Oversight Board approved an amendment to the LRPMP which would
provide for transfer of the parking portion of the Redevelopment Block property to the City at no
cost. On January 28, 2016, the DOF approved this action. The action provided for the Oversight
Board's consideration is to implement the Long Range Property Management Plan and approve
the transfer of property.
Long Term Benefits to the Taxing Entities
The property disposition procedures indicated that the Successor Agency should look at the
economic impact of the proposed project and the long term benefits to the taxing entities. The
estimated economic impact of the projects was evaluated in two ways:
1. Project Site Specific
2. Surrounding Businesses and Properties
Project Site Specific
During the proposal evaluation phase, Kosmont Companies estimated that if the Redevelopment
Block was developed as proposed by the Serrano Development Group and Laemmle Theatres,
the assessed property value once constructed would be an estimated $26.2 million. Currently, as
a governmentally owned property, no property tax is paid on this property.
Additionally, Kosmont companies estimated that the retail and theatre components of the project
would generate $8,170,000 in new taxable sales on the site.
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Surrounding Businesses and Properties
Applied Economics LLC was retained by staff to conduct an in-depth analysis on the impact of
the project to the surrounding businesses and properties. The final report is attached. Applied
Economics is a consulting firm based in Phoenix, Arizona, that specializes in economic and
demographic issues. Its major services include economic and fiscal impact assessments,
socioeconomic modeling, and urban planning for clients nationwide, including local
governments, school districts, councils of government, and economic development
organizations.
The study projects that property values in the area will increase by $10 million: $6.6 million as a
result of the project; and $3.4 million as a result of potential redevelopment sparked by this
proj ect.
Additionally, it is anticipated that the development of the proposed project will generate
approximately $6.4 million in new taxable sales annually in Santa Clarita by businesses not on
the project site. Of that amount, $5.8 million is expected to be generated specifically in the Old
Town Newhall area, with the remaining $600,000 accounting for goods not available in the area,
including apparel, new automobiles sales, and home furnishings.
Summary
Taking into account the projections from Kosmont Companies and the analysis completed by
Applied Economics, the project overall (both on the Redevelopment Block and the neighboring
businesses and properties) has an estimated property value increase of $36,200,000 and an
estimated $14,570,000 in new taxable sales in Santa Clarita annually.
ALTERNATIVE ACTION
Other actions as determined by the Oversight Board.
FISCAL IMPACT
The total fair market value of the property was determined to be $2.1 million. This included an
overall land value of $2.6 million less $500,000 for the known and potential for unknown
environmental constraints on the Redevelopment Block.
The Oversight Board's approval of the First Amendment to the LRPMP provides for transfer of
the parking portion of the Redevelopment Block property to the City at no cost. Based on the
appraisal, the value of the property for the parking portion of the Redevelopment Block is
$966,966.
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Fee title to the Redevelopment Block is vested in the Successor Agency, however the City's
Developer Fee Fund and Low -Moderate Income Housing Fund, now known as the Housing
Successor Asset Fund, possess a beneficial interest in the Redevelopment Block.
The proceeds from the sale of those portions of the Redevelopment Block to Old Town -Main,
LLC, for the proposed Mixed Use Project is $692,509, and to Laemmle Newhall, LLC, for the
proposed Laemmle Theatre Project is $440,525, or collectively approximately $1,133,034
subject to a reduction for the Successor Agency's share of escrow fees.
The City Developer Fee Funds were paid to the City by private third party developers to assist in
the creation of affordable housing. Accordingly, since no affordable housing units are being
created on the Redevelopment Block, to avoid any claim of misappropriation of these funds, the
City Developer Fee Fund must be repaid, dollar for dollar, in the amount of its initial
contribution of $681,560.
Accordingly, after repayment of the City Developer Fee Fund as noted above, approximately
$451,474 will remain from the approximate $1,133,034 in sales proceeds for distribution to the
City as Housing Successor Agency and the Successor Agency to the Former Redevelopment
Agency. The City as Housing Successor Agency's contribution represents 48% of the combined
contribution, and the Successor Agency to the Former Redevelopment Agency's contribution
represents 52% of the combined contribution. Therefore, the City as Housing Successor Agency
will receive 48% of the $451,474 in remaining sales proceeds, up to $216,708 subject to a
reduction based on escrow fees incurred, and the Successor Agency to the Former
Redevelopment Agency will receive 52% of the $451,474 in remaining sales proceeds, up to
$234,766 subject to a reduction based on escrow fees incurred.
The City's as Housing Successor share of the proceeds will be used to further affordable housing
in our community. The Successor Agency's proceeds will be provided to Los Angeles County
Auditor -Controller to be distributed to the taxing entities as required by the Redevelopment
Dissolution Bills. Accordingly, at close of escrow, in addition to the recording of the grant deed
transferring property from the Successor Agency to Old Town Main, LLC, for the proposed
Mixed -Use Project, and Laemmle Newhall, LLC, for the proposed Laemmle Theatre Project, the
City will need to quitclaim and release any interest it has in the property as a result of its
beneficial interest pursuant to the Developer Fee Fund and as the Housing Successor.
ATTACHMENTS
Public Notice
Site Map
Resolution - Mixed Use Project
Mixed Use Project Purchase and Sale Agreement
Resolution - Laemmle Theatres
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Laemmle Theatres - Purchase Sale and Grant Agreement
Kosmont Companies Analysis
Resolution - Parking Parcel
Parking Parcel Exhibit A
Applied Economics Study
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3.a
OVERSIGHT BOARD OF THE
FORMER REDEVELOPMENT AGENCY
OF THE CITY OF SANTA CLARITA
NOTICE OF A HEARING REGARDING THE SALE AND TRANSFER OF
SUCCESSOR AGENCY PROPERTY BOUND BY LYONS AVENUE, RAILROAD
AVENUE, 9TH STREET AND MAIN STREET, SANTA CLARITA, CALIFORNIA,
PURSUANT TO A DEPARTMENT OF FINANCE APPROVED LONG RANGE
PROPERTY MANAGEMENT PLAN AND AMENDMENT THERETO
PUBLIC NOTICE IS HEREBY GIVEN:
A public hearing will be held before the Oversight Board of the former Redevelopment
Agency of the City of Santa Clarita regarding the sale and transfer of property bound by
Lyons Avenue, Railroad Avenue, 91' Street and Main Street, Santa Clarita, California,
governed by Redevelopment Agency dissolution statutes. The Successor Agency is
required by Health and Safety Code Section 34181 (f) to provide notice of the following
potential actions prior to consideration by the Oversight Board:
Approving and Authorizing the Successor Agency to enter into, execute and implement
the terms of that certain Purchase and Sale Agreement between the Successor Agency
and Old Town -Main, LLC, for the proposed Mixed Use Project along Lyons Avenue and
Main Street, in accordance with the Long Range Property Management Plan;
Approving and Authorizing the Successor Agency to enter into, execute and implement
the terms of that certain Purchase, Sale and Grant Agreement between the Successor
Agency, the City of Santa Clarita, and Laemmle Newhall, LLC, for the proposed
Laemmle Theatre Project at the south-west corner of Lyons Avenue and Railroad
Avenue, in accordance with the Long Range Property Management Plan;
Approving and Authorizing the Successor Agency to enter into, execute and implement
all necessary documents to effectuate the transfer of property at the north-west corner of
Railroad Avenue and 91h Street to the City of Santa Clarita for the public parking
structure, in accordance with the Long Range Property Management Plan Amendment
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The public hearing will be held at the February 22, 2016, Oversight Board meeting, in the
City Hall Century Room located at 23920 Valencia Boulevard and will commence at or
after 2:00 p.m. Proponents, opponents, and any interested persons may appear and be
heard on this matter at that time. Further information may be obtained by calling Denise
Covert, Economic Development Associate, at (661) 284-1411, or via mail at Santa
Clarita City Hall, 23920 Valencia Boulevard, Suite 100, Santa Clarita, California, 91355.
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If you wish to challenge this action in court, you may be limited to raising only those
issues raised at the public hearing described in this notice, or in written correspondence
delivered to the Oversight Board at or prior to the public hearing.
Dated: February 10, 2016
Kevin Tonoian
Successor Agency Secretary
Publish Date: February 12, 2016
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Attachment: Site Map (1528: Redevelopment Block)
3.c
OVERSIGHT BOARD RESOLUTION NO. 16-04
A RESOLUTION OF THE OVERSIGHT BOARD TO THE
SUCCESSOR AGENCY OF THE SANTA CLARITA
REDEVELOPMENT AGENCY APPROVING THE PURCHASE
AND SALE AGREEMENT WITH OLD TOWN -MAIN, LLC FOR
THE PROPOSED MIXED USE PROJECT
WHEREAS, the Oversight Board to the Successor Agency of the Santa Clarita
Redevelopment Agency ("Oversight Board") was established to direct the Successor Agency to
the former Santa Clarita Redevelopment Agency ("Successor Agency") pursuant to Assembly
Bill x1 26, chaptered and effective on June 27, 2011, Assembly Bill 1484 chaptered and effective c
on June 27, 2012, and Senate Bill 107 chaptered and effective on September 22, 2015 (together, @
the "Dissolution Act");
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WHEREAS, among the duties of successor agencies under the Dissolution Act is the
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preparation of a long-range property management plan that addresses the disposition and use of 'w
the real properties of the former redevelopment agency for consideration by a local oversight
board and California Department of Finance ("DOF") for purposes of administering the wind -
down of financial obligations of the former Redevelopment Agency; N
WHEREAS, Health and Safety Code ("HSC") Sections 34191.4 and 34191.5 provide
that within six (6) months of the Successor Agency receiving a Finding of Completion from the
DOF pursuant to Section 34179.7, the Oversight Board is to review and approve the Successor
Agency's Long Range Property Management Plan ("LRPMP") that addresses the disposition and
use of the former redevelopment agency's real property, which LRPMP then is submitted to the
DOF for review and approval;
WHEREAS, the Successor Agency received its Finding of Completion from the DOF on
June 20, 2013;
WHEREAS, the Successor Agency prepared an LRPMP consistent with the provisions
of the Dissolution Act, HSC Section 34191.5, and the guidelines made available by DOF;
WHEREAS, the Oversight Board approved the LRPMP on December 17, 2013;
WHEREAS, the Department of Finance approved the LRPMP on June 27, 2014;
WHEREAS, in addition to the LRPMP as required by law, the Oversight Board and
Department of Finance also adopted Property Disposition Procedures to ensure that the long term
value to the taxing entities was considered when disposing of properties outlined in the LRPMP;
and
WHEREAS, in order to implement the LRPMP specific to the property known as the
"Redevelopment Block," more specifically the property bound by Lyons Avenue, Railroad
Avenue, 9t' Street and Main Street, the Successor Agency administered a Request for
Qualifications (RFQ) process;
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WHEREAS, as a part of that process, the Successor Agency entered into Exclusive
Negotiations with Serrano Development Group and Pacific Coast Housing Development;
WHEREAS, those negotiations resulted in a proposal to divide the property into three
developments: the Mixed Use Project, the Laemmle Theatre Project and the Public Parking
Proj ect;
WHEREAS, Serrano Development Group and Pacific Coast Housing Development
created a single -purpose entity, Old Town -Main, LLC for the purposes of the Mixed Use Project;
WHEREAS, Old Town -Main proposed to purchase approximately 34,325 square feet of
the Redevelopment Block in order to develop the Mixed Use Project, for its appraised fair
market value purchase price of $692,509;
WHEREAS, the Successor Agency Board approved the Purchase and Sale Agreement
with Old Town -Main, LLC, for the proposed Mixed -Use Project on February 9, 2016
WHEREAS, public notice of this meeting before the Oversight Board was provided
pursuant to Health and Safety Code Section 34181(f);
NOW, THEREFORE, THE OVERSIGHT BOARD TO THE SUCCESSOR
AGENCY OF THE SANTA CLARITA REDEVELOPMENT AGENCY DOES HEREBY
RESOLVE AS FOLLOWS:
Section 1. The Recitals set forth above are true and correct and incorporated herein
by reference.
Section 2. The Oversight Board finds that the Successor Agency complied with the
Dissolution Act.
Section 3. The Oversight Board finds that the Successor Agency's implementation of the
Long Range Property Management Plan was consistent with the Property Disposition
Procedures.
Section 4. The Oversight Board hereby approves the Purchase and Sale Agreement
("Agreement") with Old Town -Main, LLC, for the proposed Mixed -Use Project, and does
hereby authorize and direct the Executive Director to the Successor Agency, or his designee, to
execute, enter into and take all actions necessary to implement the Agreement, sign all legal
documents to process the Agreement, subject to Agency Counsel approval, including the Grant
Deed and Assignment and Assumption Agreement with the City of Santa Clarita ("City"), and
negotiation of a right of entry agreement with Old Town -Main, LLC, to undertake and complete
the Underground Storage Tank removal work prior to close of escrow.
Section 5. The Oversight Board hereby acknowledges and agrees that the City's
Developer Fee Fund contributed $681,560 to the acquisition of the Redevelopment Block and
must be repaid, dollar for dollar, the amount of its contribution as a proportionate share of the
purchase price. The combined purchase price of the real property for the Mixed Use Project
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($692,509), Laemmle Theatre Project ($440,525) and the Public Parking Project ($0.00) is
$1,133,034. The amount due the City's Developer Fee Fund of $681,560 represents
approximately 60% of the combined purchase price of $1,133,034. Accordingly, of the $692,509
purchase price for the Mixed Use Project, $416,530 shall be distributed to the City's Developer
Fee Fund at Close of Escrow, and after deduction of Successor Agency's share of closing costs,
the balance shall be distributed 48% to the City as Housing Successor Agency for deposit to its
Low and Moderate Income Housing Asset Fund created pursuant to §34176(d) of the Dissolution
Act, and 52% to the Successor Agency for distribution by the Los Angeles County Auditor -
Controller as property tax to the taxing entities in accordance with §34188 of the Dissolution
Act.
PASSED, APPROVED, AND ADOPTED this 22nd day of February 2016.
Kenneth W. Striplin
Oversight Board Chair
ATTEST:
Marilyn Sourgose
Oversight Board Meeting Clerk
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STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF SANTA CLARITA )
I, Marilyn Sourgose, Oversight Board Meeting Clerk, do hereby certify that the foregoing
Resolution was duly adopted by the Oversight Board of the Successor Agency to the Former
Redevelopment Agency of the City of Santa Clarita at a regular meeting thereof, held on the
22nd day of February 2016, by the following vote:
AYES:
NOES:
ABSENT:
Marilyn Sourgose
Oversight Board Meeting Clerk
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PURCHASE AND SALE AGREEMENT
by and between the
SUCCESSOR AGENCY TO THE FORMER REDEVELOPMENT AGENCY OF THE
CITY OF SANTA CLARITA,
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a public entity °
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OLD TOWN -MAIN, LLC, o
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a California limited liability company 00
regarding the
Old Town Newhall Mixed Use Project
Dated: , 2016
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TABLE OF CONTENTS
Page
DEFINITIONS; REPRESENTATIONS AND WARRANTIES; CHANGE IN
OWNERSHIP, MANAGEMENT AND CONTROL...............................................4
1.1
Definitions.................................................................................................4
1.2
Representations and Warranties............................................................
10
1.3
Change in Ownership, Management and Control of Developer ..............
12
PURCHASE AND SALE...................................................................................13
2.1
Purchase and Sale.................................................................................
13
2.2
Purchase Price; Developer Deposit........................................................
13
2.3
Joint Condition Precedent.......................................................................
14
2.4
Successor Agency Conditions Precedent ...............................................
14
2.5
Developer Conditions Precedent............................................................
15
2.6
Escrow....................................................................................................17
2.7
Closing....................................................................................................18
2.8
Delivery of Documents and Closing Funds .............................................
18
2.9
Review of Title........................................................................................
19
2.10
Title Insurance........................................................................................
20
2.11
Property Taxes and Assessments..........................................................
20
2.12
Documents..............................................................................................20
2.13
AS -IS CONVEYANCE............................................................................
21
2.14
Independent Investigation; UST Removal Work.....................................22
2.15
Disclaimers.............................................................................................
24
2.16
Waivers and Releases............................................................................
24
ENTITLEMENT AND DEVELOPMENT OF THE PROJECT .............................
25
3.1
Schedule of Performance.......................................................................
25
3.2
Certificate of Compliance for Mixed Use Property ..................................
25
3.3
Entitlement of the Project........................................................................
25
3.4 Permits....................................................................................................25
3.5 Development of Project Improvements................................................... 26
3.6 Cost of Development.............................................................................. 26
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TABLE OF CONTENTS
(continued)
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3.7
Sources and Uses..................................................................................
26
3.8
Insurance Requirements.........................................................................
26
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3.9
Rights of Access.....................................................................................
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3.10
Compliance With Applicable Laws..........................................................
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3.11
Final Completion of Project.....................................................................
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3.12
Liens and Stop Notices...........................................................................
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3.13
Right of Successor Agency to Satisfy Other Liens After any Closing .....
29
3.14
Mortgage, Deed of Trust, Sale and Lease -Back Financing .....................
29
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3.15
Covenants Regarding Operation, Management and Maintenance
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Priorto Closing.......................................................................................
30
COVENANTS, RESTRICTIONS AND AGREEMENTS ....................................
30
4.1
Uses........................................................................................................30
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4.2
Taxes and Assessments.........................................................................
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4.3
Effect and Duration of Covenants...........................................................
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4.4
No Successor Agency Approval of Tenants Required ............................
31
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4.5
Obligation to Refrain From Discrimination; Form of
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Non -Discrimination and Non -Segregation Clauses .................................
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4.6
Effect and Duration of Covenants...........................................................
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Sales Tax Point of Sale Designation.......................................................
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DEFAULTS AND REMEDIES...........................................................................33
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5.1
Default Remedies - General...................................................................
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5.2
Default Resolution and Legal Actions .....................................................
34
5.3
Termination.............................................................................................36
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Successor Agency Option to Repurchase, Reenter and Repossess ......
37
5.5
Rights and Remedies Are Cumulative....................................................
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5.6
Inaction Not a Waiver of Default.............................................................
38
GENERAL PROVISIONS..................................................................................39
6.1 Notices, Demands and Communications Between the Parties ............... 39
6.2 Enforced Delay; Extension of Times of Performance ............................. 40
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TABLE OF CONTENTS
(continued)
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6.3
Successors and Assigns; Assignment to City .........................................
41
6.4
Relationship Between Successor Agency and Developer ......................
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6.5
Successor Agency Approvals and Actions ..............................................
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6.6
Counterparts...........................................................................................41
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6.7
Integration...............................................................................................41
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6.8
Brokerage Commissions.........................................................................
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6.9
Titles and Captions.................................................................................
42
6.10
Interpretation...........................................................................................42
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6.11
Modifications...........................................................................................42
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6.12
Severability.............................................................................................42
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6.13
Computation of Time...............................................................................
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6.14
Legal Advice...........................................................................................
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6.15
Time of Essence.....................................................................................
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6.16
Cooperation............................................................................................
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6.17
Conflicts of Interest.................................................................................
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6.18
Time for Acceptance of Agreement by Successor Agency .....................
43
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6.19
Developer's Indemnity............................................................................43
6.20
Successor Agency's Indemnity...............................................................
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6.21
Cooperation in the Event of Legal Challenge to Project Approvals.........
45
6.22
Non -liability of Officials and Employees of Successor Agency ...............
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6.23
Legal Fees..............................................................................................46
6.24
Applicable Law; Venue...........................................................................
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6.25
Survival...................................................................................................46
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LIST OF EXHIBITS
Exhibit A Legal Description — Old Town Newhall Property
Exhibit B Conceptual Project Plans
Exhibit C Form of Grant Deed (With Covenants)
Exhibit D Schedule of Performance
Exhibit E Assignment and Assumption Agreement
Exhibit F-1 Form of Quitclaim Deed -Final Completion
Exhibit F-2 Form of Quitclaim Deed -Close of Escrow
Exhibit G UST Removal Work
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PURCHASE AND SALE AGREEMENT
Old Town Newhall Mixed Use Project
THIS PURCHASE AND SALE AGREEMENT ("Agreement") dated as of this
day of , 2016 ("Date of Agreement"), is entered into by and between the
SUCCESSOR AGENCY TO THE FORMER REDEVELOPMENT AGENCY OF THE
CITY OF SANTA CLARITA, a public entity ("Successor Agency"), OLD TOWN -MAIN,
LLC, a California limited liability company ("Developer"). Successor Agency and c
Developer are sometimes referred to herein individually as a "Party" or collectively as the m
"Parties".
E
RECITALS o
The following Recitals are a substantive part of this Agreement; capitalized terms
used herein and not otherwise defined are defined in Section 1.1 of this Agreement:
A. Fee title to certain real property bounded by Lyons Avenue, Railroad
Avenue, 9t" Street and Main Street located in Santa Clarita, California, approximating 1.6
acres, designated as Assessor Parcel Numbers 2831-007-900, -901, -902, -903, -904,
-905, -906, -907, and -908 and more particularly described in the legal description
attached hereto as Exhibit A ("Old Town Newhall Property'), is vested in the Successor
Agency.
B. As recognized in the Long Range Property Management Plan ("LRPMP")
prepared by the Successor Agency dated December 17, 2013, and approved by the
Oversight Board to the Successor Agency of the Redevelopment Agency of the City of
Santa Clarita ("Oversight Board"), on December 17, 2013, pursuant to Resolution No.
13-06, and the State of California, Department of Finance ("Department"), by letter
dated June 27, 2014, the Successor Agency owns forty-six percent (46%) of the
beneficial interest in the Old Town Newhall Property, the City of Santa Clarita, a
California municipal corporation ("City"), owns eleven percent (11%) of the beneficial
interest in the Old Town Newhall Property, and the City as housing successor to the
former Redevelopment Agency of the City of Santa Clarita ("Housing Successor"),
owns forty-three percent (43%) of the beneficial interest in the Old Town Newhall
Property.
C. In accordance with the LRPMP, on November 13, 2014 the Successor
Agency solicited qualifications for the sale and development of the Old Town Newhall
Property ("Request for Qualifications").
D. On July 14, 2015, Successor Agency and SERRANO DEVELOPMENT
GROUP, INC., a California corporation ("Serrano") and PACIFIC COAST HOUSING
DEVELOPMENT, LLC, a California limited liability company ("Pacific") entered into that
certain Exclusive Negotiation Agreement ("ENA") regarding the potential sale of fee title
to a portion of the Old Town Newhall Property by Successor Agency to Serrano and
Pacific and their development of a mixed use project of approximately 19,300 square
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feet of ground floor retail and restaurant use with three to four stories of 46 ownership or
rental residential units above, and subterranean parking, all to be further refined during
the term of the ENA.
E. The ENA provided that Serrano and Pacific have the ability to assign their
interest under the ENA to one or more single purpose entities controlled by Serrano and
Pacific that is formed to own, develop and operate the Project on the Mixed Use
Property. In accordance with the ENA, Serrano and Pacific have formed and assigned its
rights under the ENA to Developer, and Successor Agency hereby approves of
Developer and assignment of the interest under the ENA to Developer. m
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F. Developer prepared, at its sole cost and expense, a proposed mixed use
development concept encompassing three to four stories of residential units above c
approximately 20,000 square feet of ground floor retail and restaurant use, with Z
approximately 85 subterranean residential parking spaces beneath the ground floor
retail/restaurant space ("Project") for a portion of the Old Town Newhall Property
("Mixed Use Property") in response to and as a part of the Successor Agency's
Request for Qualifications process. Since the execution of the ENA, the Project on the Lo
Mixed Use Property has been further refined by Developer, at its sole cost and expense, r
into a conceptual design that is attached to this Agreement as Exhibit B ("Conceptual
Project Plans"). a
G. Successor Agency and Developer have negotiated in good faith in
accordance with the ENA and now desire to enter into this Agreement to provide for (i)
Developer's preparation and Successor Agency's approval of a plat map and legal
description of the Mixed Use Property, and Successor Agency securing from City
approval of a Certificate of Compliance for the creation of the Mixed Use Property as a
separate legal parcel in accordance with the California Subdivision Map Act and Chapter
16.35 of the Municipal Code ("Certificate of Compliance"), (ii) Developer's right to
negotiate with and secure a binding agreement with City prior to Closing regarding the
preparation and approval of a plat map and legal description of an easement ("Ramp
Easement") for the design, construction, maintenance, repair, replacement and use of a
drive ramp between the subterranean garage on the Mixed Use Property to the ground
floor of a public parking garage ("Parking Project") to be developed by or on behalf of
City on the property adjacent to the Mixed Use Property ("Public Parking Garage
Property"), as well as rights of ingress and egress over and across the Public Parkin
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Garage Property, from the drive ramp to entry and exit points on Railroad Avenue and 9t
Street ("Ramp Easement Agreement"), (iii) Successor Agency's disposition of the
Mixed Use Property to Developer at fair market value, and (iv) Developer's development
of the Mixed Use Property as provided herein.
H. Developer shall purchase and develop the Mixed Use Property consistent
with the Old Town Newhall Specific Plan ("Specific Plan"), with the Project as generally
depicted in the Conceptual Project Plans, subject to such revisions, modifications and
refinements to the Project as Developer may present as it deems fiscally responsible for
an economically viable project, and ultimately as required by the Project Approvals.
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I. The Old Town Newhall Property is located within the Urban Center zone
("UC") of the Specific Plan, and is designated UC in the City's General Plan land use
element and Zoning Ordinance set forth in Title 17 of the Municipal Code. The
development assumptions for the Old Town Newhall Property as set forth in the Specific
Plan provides for a public parking garage producing approximately 400 parking spaces,
along with `liner' retail up to 34,000 square feet and housing or office above. The Project
on the Mixed Use Property is consistent with the Specific Plan, and the environmental
impacts of approving the Specific Plan and the implementation thereof was analyzed
under the California Environmental Quality Act ("CEQA") (set forth in Public Resources c
Code, section 21000 et seq.), pursuant to the Draft Master Environmental Impact Report m
for the Old Town Newhall Specific Plan, as modified by the Final Master Environmental
Impact Report for the Old Town Newhall Specific Plan (SCH 42005021012), (together, E
"FEIR") certified by the City Council on November 8, 2005 by Resolution No. 05-133. o
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J. The Project contemplated by this Agreement will require (i) application by w
Developer to City for a Design Review Permit ("Development Permit") in accordance
with the Specific Plan and analysis under CEQA, (ii) application by Successor Agency to 00
City for a Certificate of Compliance for the Mixed Use Property, (iii) approval by City of Lo
the Ramp Easement Agreement and (iv) application by Developer to City for subdivision r
of residential and commercial condominium units ("Subdivision"). Collectively, the
FEIR, Specific Plan, CEQA analysis of the Project, Subdivision and Development
Permit, Certificate of Compliance and Ramp Easement Agreement are the "Project
Approvals." Notwithstanding the approval and execution of this Agreement by the w
Successor Agency, the Developer hereby acknowledges that it understands that the City N
is a separate and distinct legal entity from the Successor Agency, the City is not a V
signatory to this Agreement and thus is not committing or agreeing to undertake any acts R
or activities requiring the subsequent independent exercise of discretion by the City,
specifically including (i) the adoption or certification of an environmental assessment as
required by CEQA, (ii) the adoption of a statement of overriding considerations in a
accordance with Public Resources Code Section 21081(b) if significant effects on the
environment cannot be mitigated, or (iii) approval of the Project Approvals or other land c
use entitlements needed for the Project. Furthermore, Developer hereby acknowledges a
and agrees that the City retains its discretion to deny, disapprove or condition any and all
such environmental assessments, land use applications, Project Approvals and any w
other discretionary approvals necessary for the implementation of the Project. X
K. Developer has not sought, has not received, and will not accept any public
funds, stipends, subsidies or the transfer of non -monetary public resources for the
Project.
L. Developer acknowledges that notwithstanding the approval of this
Agreement by Successor Agency, this Agreement remains subject to review and
approval by the Oversight Board.
M. Successor Agency asserts that the Project will further the Specific Plan's
vision to transform Old Town Newhall into a pedestrian -oriented district with a mix of
office, retail, restaurant, entertainment and service commercial businesses and housing.
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N. Successor Agency asserts that the execution and performance of this
Agreement is in the vital and best interests of the Successor Agency and the Affected
Taxing Entities, and the health, safety and welfare of the City's residents, and is in
accord with the provisions of applicable federal, state and local law.
AGREEMENT
NOW, THEREFORE, Successor Agency and Developer hereby agree as follows
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1. DEFINITIONS; REPRESENTATIONS AND WARRANTIES; CHANGE IN c
OWNERSHIP, MANAGEMENT AND CONTROL. m
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1.1 Definitions. E0.
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"Affiliate of Developer" means an entity or entities in which Developer or 'w
Developer's Principal retains more than fifty percent (50%) in the aggregate, directly or
indirectly, of the ownership or beneficial interest therein and in which Developer or
Developer's Principal retains control of such entity or entities. For the purposes of this N
definition, "control" means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of an entity or a person, whether w
through the ownership of voting securities, by contract, or otherwise, and the terms E
"controlling" and "controlled" have the meanings correlative to the foregoing. w
"Affected Taxing Entities" means taxing entities that benefit from distribution of
property tax and other revenue pursuant to Health and Safety Code § 34188.
"Agreed Extension of Performance" is defined in Section 6.2.
"Agreement" means this Purchase and Sale Agreement between Successor
Agency and Developer.
"Applicable Laws" means, collectively: (i) all State and Federal laws and
regulations applicable to the Mixed Use Property and the Project as enacted, adopted
and amended from time to time, including Environmental Laws; (ii) all City policies,
standards and specifications set forth in this Agreement and the Project Approvals,
including the specific conditions of approval adopted with respect to the Project
Approvals; (iii) with respect to matters not addressed by this Agreement or the Project
Approvals but governing permitted uses of the Mixed Use Property, building locations,
sizes, densities, intensities, design and heights, site design, setbacks, lot coverage and
open space, and parking, those City ordinances, rules, regulations, official policies,
standards and specifications in force and effect on the Date of Agreement; and (iv) with
respect to all other matters, including building, plumbing, mechanical and electrical
codes, those City ordinances, rules, regulations, official policies, standards and
specifications in force and effect as may be enacted, adopted and amended from time to
time, including ordinances, resolutions, orders, rules, official policies, standards,
specifications, guidelines or other regulations, which are promulgated or adopted by the
City (including but not limited to any City agency, body, department, officer or employee)
or its electorate (through the power of initiative or otherwise) after the Date of Agreement,
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except those in conflict with this Agreement.
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"As -Is Condition" is defined in Section 2.13.
"Assignment and Assumption Agreement" means the Assignment and
Assumption Agreement described in Section 6.3 and to be executed and recorded at
Closing substantially in the form attached hereto as Exhibit E and incorporated herein.
"CEQA" or California Environmental Quality Act is defined in Recital I.
"Certificate of Compliance" is defined in Recital G.
"City" is defined in Recital B and means the City of Santa Clarita, a California
municipal corporation.
"City Council" means the City Council of the City of Santa Clarita.
"Claims" means liabilities, obligations, orders, claims, damages, governmental
fines or penalties, and expenses of defense with respect thereto, including reasonable
attorneys' fees and costs.
"Close of Escrow" is defined in Section 2.7.
"Closing" is defined in Section 2.7.
"Closing Default" is defined in Section 5.2.3.
"Commence Construction", "Commenced Construction", or "Commencement
of Construction" or similar phrases shall be deemed to have occurred when the
Developer has commenced the demolition of existing improvements located on, and
grading of, the Mixed Use Property preparatory to the development of the Project in
accordance with the Project Approvals, and installation of perimeter construction fencing
on the Mixed Use Property, and such date shall be memorialized in writing by the parties.
"Conceptual Project Plans" is defined in Recital F and depicted in Exhibit B.
"Condition of Title" is defined in Section 2.9.
"Control" is defined in Section 1.3.2.
"Date of Agreement" means the date first set forth above.
"Day -to -Day Management" means
responsibilities for the activities of Developer.
"Default" is defined in Section 5.1.
"Department" is defined in Recital B.
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"Developer" means Old Town -Main, LLC, a California limited liability company.
"Developer Deposit" means the $25,000 good faith deposit to be provided by
Developer pursuant to Section 2.2, to be credited against the Purchase Price at the
Closing defined in Section 2.7.
"Developer Conditions Precedent" is defined in Section 2.5.
"Developer Indemnitees" is defined in Section 6.20.
"Developer Liabilities" is defined in Section 6.19.
"Developer's Principal" or "Principal' is Jeffrey W. Paul.
"Development Permit" is defined in Recital J.
"Documents" is defined in Section 2.12.
"ENA" is defined in Recital D.
"Environmental Force Majeure Delay" `is defined in Section 6.2.
"Environmental Laws" means, collectively: (i) the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 U.S.C. § 9601, et seq., (ii)
the Hazardous Materials Transportation Act, as amended, 49 U.S.C. § 1801, etseq., (iii)
the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6901, et seq.,
(iv) the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251, et seq., (v)
the Clean Air Act, as amended, 42 U.S.C. § 7401, et seq., (vi) the Toxic Substances
Control Act, as amended, 15 U.S.C. § 2601, et seq., (vii) the Clean Water Act, as
amended, 33 U.S. Code § 1251, et seq., (viii) the Oil Pollution Act, as amended, 33
U.S.C. § 2701, et seq., (ix) California Health & Safety Code § 25100, et seq. (Hazardous
Waste Control), (x) the Hazardous Substance Account Act, as amended, Health & Safety
Code § 25300, et seq., (xi) the Unified Hazardous Waste and Hazardous Materials
Management Regulatory Program, as amended, Health & Safety Code § 25404, et seq.,
(xii) Health & Safety Code § 25531, et seq. (Hazardous Materials Management), (xiii) the
California Safe Drinking Water and Toxic Enforcement Act, as amended, Health & Safety
Code § 25249.5, et seq., (xiv) Health & Safety Code § 25280, et seq. (Underground
Storage of Hazardous Substances), (xv) the California Hazardous Waste Management
Act, as amended, Health & Safety Code § 25170. 1, et seq., (xvi) Health & Safety Code §
25501, et seq., (Hazardous Materials Response Plans and Inventory), (xvii) Health &
Safety Code § 18901, et seq. (California Building Standards), (xviii) the Porter -Cologne
Water Quality Control Act, as amended, California Water Code § 13000, et seq., (xix)
California Fish and Game Code §§ 5650-5656, (xx) the Polanco Redevelopment Act, as
amended, Health & Safety Code § 33459, et seq., (xxi) Health & Safety Code § 25403, et
seq. (Hazardous Materials Release Cleanup), and (xxii) any other federal, state or local
laws, ordinances, rules, regulations, court orders or common law related in any way to the
protection of the environment, health or safety.
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"Escrow" is defined in Section 2.6.
"Escrow Agent" means First American Title Insurance Company.
"Exceptions" is defined in Section 2.9.
"Executive Director" means the Executive Director of the Successor Agency.
"Final Completion" or "Finally Complete" shall be deemed to have occurred s
when a temporary certificate of occupancy has been issued for the Project by City. o
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"Final Master Environmental Impact Report for the Old Town Newhall
Specific Plan" or "FEIR" is defined in Recital I. a
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"FIRPTA" is defined in Section 1.2.1(f). w
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"Force Majeure Delay" is defined in Section 6.2.
"Grant Deed" means the grant deed for the conveyance of the Mixed Use Property
from Successor Agency to Developer to be executed and recorded at Closing
substantially in the form attached hereto as Exhibit C and incorporated herein by this
reference.
"Hazardous Materials" means any substance, material, or waste which is or
becomes regulated by any local governmental authority, the State of California, or the
United States Government under any Environmental Laws, including any material or
substance which is defined as "hazardous," "extremely hazardous," "hazardous waste,"
"extremely hazardous waste," "restricted hazardous waste," "hazardous substance" or
"hazardous material" under any Environmental Laws, including petroleum, or any fraction
thereof, friable asbestos, and polychlorinated biphenyls.
"Housing Successor" is referred to in Recital B and means the City of Santa
Clarita, successor to the housing assets and functions previously performed by the
Redevelopment Agency of the City of Santa Clarita, pursuant to Health and Safety Code
§34176.
"Initial Litigation Challenge" is defined in Section 6.21.
"Joint Condition Precedent" is defined in Section 2.3.
"Long Range Property Management Plan" or "LRPMP" is defined in Recital B.
"Mixed Use Property" is defined in Recital F and described in Section 3.2.
"Municipal Code" means the Santa Clarita Municipal Code.
"NFA" is defined in Section 2.14.
"Notice" means a written notice in the form prescribed by Section 6.1.
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"Old Town Newhall Property" is defined in Recital A and legally described in
Exhibit A.
"Organizational Documents" is defined in Section 1.2.2.
"Outside Date" is March 31, 2018.
"Oversight Board" is defined in Recital B
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"Pacific" means Pacific Coast Housing Development, LLC, a California limited o
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"Parking Project" is defined in Recital G. a
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"Party" means the Successor Agency or Developer.
"Permitted Transfer" is defined in Section 1.3.3.
"Project" is defined in Recital F.
"Project Agreements" means this Agreement, the Grant Deed (Exhibit C), the
Assignment and Assumption Agreement (Exhibit E), the Quitclaim Deed -Final
Completion (Exhibit F-1), and the Quitclaim Deed -Close of Escrow (Exhibit F-2).
"Project Approvals" is defined in Recital J.
"Public Parking Garage Property" is defined in Recital G.
"Purchase Price" is defined in Section 2.2.
"Quitclaim Deed -Close of Escrow" is described in Section 2.5.2, to be executed
and recorded upon Close of Escrow, and substantially in the form attached hereto as
Exhibit F-2 and incorporated herein.
"Quitclaim Deed -Final Completion" is described in Section 5.4.3, to be executed
and recorded upon Final Completion, and substantially in the form attached hereto as
Exhibit F-1 and incorporated herein.
"Ramp Easement" is defined in Recital G.
"Ramp Easement Agreement" is referred to in Recital G and means the
agreement for the conveyance of the Ramp Easement from City to Developer.
"Reports" is defined in Section 2.12.
"Request for Qualifications" is defined in Recital C.
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"Request to Resolve Dispute" is defined in Section 5.2.1.
"Schedule of Performance" means the Schedule of Performance attached hereto
as Exhibit D and incorporated herein by this reference, setting out the dates and/or time
periods by which certain obligations set forth in this Agreement must be accomplished.
"Serrano" means Serrano Development Group, Inc., a California corporation.
"Site Condition" is defined in Section 2.14. s
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"Sources and Uses" is defined in Section 3.7. 00
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"Specific Plan" is defined in Recital H. a
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"Subdivision" is defined in Recital J. w
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"Substantial Completion" or "Substantially Complete" shall be deemed to have
occurred when (i) Developer has provided adequate evidence to the Executive Director 00
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that eighty five percent (85%) of the contract price for the construction of the Project
(including all change orders) has been expended and (ii) the life safety systems within the
Project have been installed and are fully functional. ju
"Successor Agency" means the Successor Agency to the former Redevelopment
Agency of the City of Santa Clarita, a public entity.
"Successor Agency Conditions Precedent" is defined in Section 2.4.
"Successor Agency Indemnitees" is defined in Section 6.19.
"Successor Agency Liabilities" is defined in Section 6.20.
"Successor Agency Party" is defined in Section 2.13.
"Successor Agency's Actual Knowledge" or words to such effect shall mean the
present, actual knowledge of Thomas Cole, the Director of Community Development, :3
Jason Crawford, Manager of Economic Development and Marketing, and Denise Covert,
Economic Development Associate, excluding constructive knowledge or duty of inquiry, X
existing as of the Date of Agreement.
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"Title Company" means First American Title Company.
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"Title Policy" is defined in Section 2.10. a
"Title Reports" is defined in Section 2.9.
"Transfer" means any assignment or transfer of this Agreement or the Mixed Use
Property or any portion thereof or any interest therein and as further defined in Section
1.3.2.
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"UC" is defined in Recital I.
"Unrecorded Agreements" is defined in Section 2.12.
"UST" is defined in Section 2.14.
"UST Removal Construction" is defined in Section 2.14.
"UST Removal Regulatory Approval" is defined in Section 2.14. s
"UST Removal Work" is defined in Section 2.14 and more particularly described in m
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1.2 Representations and Warranties. C
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1.2.1 Successor Agency Representations and Warranties. Successor w
Agency represents and warrants to Developer as follows:
(a) Authority. Successor Agency is a public entity with full right,
power and lawful authority to perform its obligations hereunder, and the execution,
delivery, and performance of this Agreement by Successor Agency has been fully
authorized by all requisite actions on the part of the Successor Agency.
(b) No Conflict. Successor Agency's execution, delivery and
performance of its obligations under this Agreement will not constitute a default or a
breach under any contract, agreement or order to which Successor Agency is a party or
by which Successor Agency is bound.
(c) No Litigation or Other Proceeding. Except as provided in
Recital J, to Successor Agency's Actual Knowledge, no litigation or other proceeding
(whether administrative or otherwise) is outstanding or has been threatened which would
prevent, hinder or delay the ability of Successor Agency to perform its obligations under
this Agreement, or that would adversely affect the Mixed Use Property or the ability of
Developer to develop the same as contemplated by this Agreement.
(d) Right to Possession. No person or entity other than
Successor Agency has the right to use, occupy, or possess the Mixed Use Property, or
any portion thereof. Excepting the use prior to Closing of all or a portion of the Mixed Use
Property for public parking and occasional use as a farmer's market and other City
sponsored events or activities, Successor Agency shall not enter into any lease or other
agreement respecting use, occupancy, or possession of the Mixed Use Property or any
portion thereof without the written consent of Developer. The foregoing notwithstanding,
on no less than 48 hours prior notice from Developer, Successor Agency shall provide the
Mixed Use Property to Developer free of any use, occupancy or possession by any
person or entity in order for Developer to undertake activities contemplated by this
Agreement, including but not limited to the UST Removal Work. Furthermore, Successor
Agency shall deliver the Mixed Use Property to Developer free of any use, occupancy or
possession by any person or entity prior to Closing and neither Successor Agency nor
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City shall have any right thereafter to use any portion of the Mixed Use Property for public
parking, farmer's markets, or any other use.
(e) Condition of Mixed Use Property. Successor Agency has no
notice of any pending or threatened action or proceeding arising out of the condition of the
Mixed Use Property or any alleged violation of any Environmental Laws. Except as
otherwise disclosed by Documents provided by Successor Agency to Developer and the
results of Developer's independent investigation of the Mixed Use Property pursuant to
Section 2.14, to Successor Agency's Actual Knowledge, the Mixed Use Property is in
compliance with all Environmental Laws. m
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(f) FIRPTA. The Successor Agency is not a "foreign person"
within the parameters of the Foreign Investment In Real Property Tax Act of 1980 c
("FIRPTA") or any similar state statute, or is otherwise exempt from the provisions of Z
FIRPTA or any similar state statute, or has otherwise complied with and will comply with
all the requirements of FIRPTA or any similar state statute.
(g) Compliance With Laws. Other than as disclosed by the
Documents, the Successor Agency has received no notice and has no Actual Knowledge
of any violation of Applicable Laws of any governmental agency, body or subdivision
affecting or relating to the Mixed Use Property that would materially, adversely affect the
Successor Agency's ability to convey the Mixed Use Property or Developer's ability to
construct or operate the Project, or any portion thereof.
(h) Condemnation. The Successor Agency has no Actual
Knowledge of any pending or threatened proceedings in eminent domain or otherwise
with respect to the Mixed Use Property that would materially, adversely affect the
Successor Agency's ability to convey the Mixed Use Property or Developer's ability to
construct or operate the Project, or any portion thereof.
Until the recording of the Quitclaim Deed -Final Completion pursuant
to Section 5.4.3 or earlier termination of this Agreement, Successor Agency shall, upon
learning of any fact or condition which would cause any of the warranties and
representations in this Section 1.2.1 not to be true, immediately give written Notice of
such fact or condition to Developer. The foregoing representations and warranties shall
survive Closing and continue until recording of the Quitclaim Deed -Final Completion
pursuant to Section 5.4.3.
1.2.2 Developer's Representations and Warranties. Developer represents
and warrants to Successor Agency as follows:
(a) Authority. Developer is a California limited liability company
duly organized in the State of California and qualified to do business and in good standing
under the laws of the State of California. Prior to execution of this Agreement, Developer
has provided to Successor Agency its Articles of Incorporation, By -Laws, and Operating
Agreement ("Organizational Documents"). The Organizational Documents provided by
Developer to Successor Agency are true and complete copies of the originals, as may be
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amended from time to time. Developer has full right, power and lawful authority to
undertake all of its obligations hereunder and the execution, performance and delivery of
this Agreement by Developer has been fully authorized by all requisite company actions
on the part of Developer.
(b) No Conflict. Developer's execution, delivery and
performance of its obligations under this Agreement will not constitute a default or a
breach under any contract, agreement or order to which Developer or any Principal is a
party or by which Developer or any Principal is bound.
(c) No Litigation or Other Proceeding. To Developer's current
actual knowledge, no litigation or other proceeding (whether administrative or otherwise)
is outstanding or has been threatened which would prevent, hinder or delay the ability of
Developer to perform its obligations under this Agreement.
(d) No Developer Bankruptcy. Developer is not the subject of any
bankruptcy proceeding, and no general assignment or general arrangement for the
benefit of creditors or the appointment of a trustee or receiver to take possession of all or
substantially all of Developer's assets has been made.
Until the recording of the Quitclaim Deed -Final Completion pursuant
to Section 5.4.3 or earlier termination of this Agreement, Developer shall, upon learning of
any fact or condition which would cause any of the warranties and representations in this
Section 1.2.2 not to be true, immediately give written Notice of such fact or condition to
Successor Agency. The foregoing representations and warranties shall survive Closing
and continue until recording of the Quitclaim Deed -Final Completion pursuant to Section
5.4.3.
1.3 Change in Ownership, Management and Control of Developer. The
qualifications and identity of Developer are of particular concern to Successor Agency. It
is because of those unique qualifications and identity that Successor Agency has entered
into this Agreement with Developer.
1.3.1 Until Final Completion of Project. Until Final Completion of the
Project, Developer shall not Transfer the Mixed Use Property or any portion of this
Agreement. After Final Completion of the Project, Developer may Transfer the Mixed Use
Property, subject to the terms of the Grant Deed, without the consent or approval of the
Successor Agency.
1.3.2 Additional Matters. Except for Permitted Transfers as provided in
Section 1.3.3, the term "Transfer" for the purposes of this Section 1.3.2 shall include any
significant change in the Control of Developer by any method or means. The term
"Control" as used in the immediately preceding sentence and Sections 1.3.3 and 1.3.4
below, shall mean the power to direct the Day -to -Day Management of Developer, and it
shall be a presumption that control with respect to a corporation or limited liability
company is the right to exercise, directly or indirectly, more than 50% of the voting rights
attributable to the controlled corporation or limited liability company, and, with respect to
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any individual, partnership, trust, other entity or association, control is the possession,
indirectly or directly, of the power to direct or cause the direction of the Day -to -Day
Management of the controlled entity.
1.3.3 Permitted Transfers. Notwithstanding any other provision of this
Agreement to the contrary, each of following Transfers are permitted and shall not require
Successor Agency consent under this Section 1.3 (each, a "Permitted Transfer"):
(a) Any lien or encumbrance on the Mixed Use Property to secure
the funds necessary for acquisition of the Mixed Use Property and construction and/or
permanent financing of the Project;
(b) An assignment of this Agreement to an Affiliate of Developer,
provided that Developer's Principal retains Control, directly or indirectly, in such Affiliate;
(c) Permanent financing of the Project following its Substantial
Completion as provided in Section 3.14.1;
(d) Dedications and grants of easements and rights of way
required in accordance with the Project Approvals; or
(e) The leasing of the Mixed Use Property or portion thereof to an
Affiliate of Developer or third -party tenants, for uses permitted by this Agreement, the
Project Approvals, and Applicable Laws; or
(f) Admission of new or additional equity partners provided that
Developer's Principal retains Control, directly or indirectly, in Developer.
1.3.4 Subsequent Equity Transfers. Until Final Completion of the Project,
any proposed admission of new equity partner(s) resulting in a change in Control of
Developer shall be subject to the prior review and approval by the Executive Director,
which approval may be granted, withheld, conditioned or delayed, in the Executive
Director's sole discretion.
2. PURCHASE AND SALE.
2.1 Purchase and Sale. Subject to the terms, covenants and conditions of this
Agreement, Developer shall purchase from Successor Agency and Successor Agency
shall sell to Developer the Mixed Use Property.
2.2 Purchase Price; Developer Deposit. The total purchase price for the Mixed
Use Property shall be equal to the sum of Six Hundred Ninety Two Thousand Five
Hundred Nine and 00/100 Dollars ($692,509.00) ("Purchase Price").
Concurrent with the opening of Escrow in accordance with Section 2.6, Developer shall
deposit Twenty -Five Thousand and 00/100 Dollars ($25,000) into Escrow with the
Escrow Agent ("Developer Deposit"). At Closing Developer shall be entitled to a credit in
the amount of the Developer Deposit as against the Purchase Price. In the event that this
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Agreement is terminated prior to Closing and Developer is not in Default as provided in
this Agreement, Developer shall be entitled to a refund of the Developer Deposit.
2.3 Joint Condition Precedent. Successor Agency's obligation to proceed with
the disposition of the Mixed Use Property to Developer, and Developer's obligation to
proceed with the acquisition of the Mixed Use Property from Successor Agency, pursuant
to the terms of this Agreement and the Project Agreements, is subject to the approval of
this Agreement by the Oversight Board prior to Closing, which neither Successor Agency
or Developer may waive ("Joint Condition Precedent").
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2.4 Successor Agency Conditions Precedent. Successor Agency's obligation m
to proceed with the disposition of the Mixed Use Property to Developer pursuant to the
terms of this Agreement is subject to the fulfillment or waiver by Successor Agency of c
each and all of the conditions precedent described below ("Successor Agency Z
Conditions Precedent"). The Successor Agency Conditions Precedent are solely for
the benefit of Successor Agency and shall be fulfilled or waived within the time periods
provided for herein, and in any event, no later than the Outside Date.
2.4.1 No Default. Developer shall not be in Default under this Agreement,
and no event shall have occurred, which with the passage of time or giving of Notice, or
both, would constitute a Default by Developer hereunder.
2.4.2 Execution and Delivery of Documents by Developer. Developer
shall have executed and acknowledged the Grant Deed and Assignment and Assumption
Agreement, and Developer shall have executed (and, where appropriate,
acknowledged), and delivered into escrow all other documents that Developer is required
to deliver into escrow pursuant to Section 2.8.1.
2.4.3 Delivery of Funds. In connection with the Closing, Developer shall
have delivered through escrow the Purchase Price, less the Developer Deposit, and such
other funds, including escrow costs, recording fees and other closing costs as are
necessary to comply with Developer's obligations under this Agreement.
2.4.4 Sources and Uses. Successor Agency shall have approved the
Developer's Sources and Uses pursuant to Section 3.7.
2.4.5 Evidence of Available Funds.
(a) Closing. Successor Agency shall have received from
Developer reasonable evidence that Developer has, or subject to Closing, will have,
100% of Mixed Use Property acquisition and Project development and construction costs,
as identified in the Sources and Uses, in ready and available funds (which may be
Developer's own funds and/or third party equity or debt financing proceeds).
(b) Developer expressly acknowledges that Closing will not occur
unless and until the condition above has been satisfied.
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2.4.6 Equity Funding/Construction Loan. Developer shall have delivered
to Successor Agency evidence that the equity commitments or acquisition and/or
construction loan, if any, for Closing, described in the Sources and Uses, shall have
closed or (if not from the Developer's Principal or an Affiliate of Developer) shall be ready
to close concurrently with the Closing.
2.4.7 Project Construction Permits. Developer shall have submitted
complete applications to City for demolition, grading and building permits necessary for
Developer to develop and construct the Project, and such permit applications shall have
been reviewed and approved by City and shall be ready to be issued by the City subject m
only to payment of applicable fees.
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2.4.8 Project Approvals. The Project Approvals, excluding the c
Subdivision, shall be final and non -appealable, and if any appeals, legal challenges, Z
requests for rehearing, or referenda have been filed or instituted, such appeals, legal
challenges, requests for rehearing, or referenda shall have been fully and finally resolved
in a manner acceptable to Successor Agency in its sole and absolute discretion, and such 00
that no further appeals, legal challenges, requests for rehearing, or referenda are
possible.
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2.4.9 Insurance Policies. Developer shall have submitted to Successor
Agency evidence that the insurance policies required by Section 3.8 have either been
issued or will be ready to issue prior to Commencement of Construction.
2.4.10 Site Condition. Developer shall have completed the UST Removal
Work and accepted or waived in accordance with Section 2.14 the Site Condition.
2.4.11 Execution and Delivery of Ramp Easement Aareement Documents.
The Ramp Easement Agreement shall have been approved and executed by the City and
Developer, and City shall have executed, acknowledged and delivered to Escrow a
document in form and substance acceptable to Developer conveying the Ramp
Easement.
2.5 Developer Conditions Precedent. Developer's obligation to proceed with
the acquisition of Mixed Use Property from Successor Agency pursuant to the terms of
this Agreement is subject to the fulfillment or waiver by Developer of each and all of the
conditions precedent described below ("Developer Conditions Precedent"). The
Developer Conditions Precedent are solely for the benefit of Developer and shall be
fulfilled or waived, if applicable, within the time periods provided for herein, and in any
event, no later than the Outside Date.
2.5.1 No Default by Successor Agency. Successor Agency shall not be in
Default under this Agreement, and no event shall have occurred, which with the passage
of time or giving of Notice, or both, would constitute a default by Successor Agency
hereunder.
2.5.2 Execution and Delivery of Documents by Successor Agency and
Com. Successor Agency shall have executed and acknowledged the Grant Deed, and
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Assignment and Assumption Agreement, and Successor Agency shall have executed
(and, where appropriate, acknowledged) and delivered into escrow all other documents
that Successor Agency is required to deliver into escrow pursuant to Section 2.8.2.
Successor Agency shall have caused City to execute, acknowledge and deposit into
Escrow the Assignment and Assumption Agreement, and to release its beneficial interest
in the Mixed Use Property, as described in Recital B, and thus execute, acknowledge and
deposit into Escrow the Quitclaim Deed -Close of Escrow, as set forth in the form attached
hereto as Exhibit F-2 and incorporated herein.
2.5.3 Execution and Delivery of Ramp Easement Agreement Documents.
City shall have approved and executed the Ramp Easement Agreement negotiated
between City and Developer, and City shall have executed, acknowledged and delivered
to Escrow a document in form and substance acceptable to Developer conveying the
Ramp Easement.
2.5.4 Project Approvals. The Project Approvals, excluding the
Subdivision, shall be (a) final and non -appealable, and if any appeals, legal challenges,
requests for rehearing, or referenda have been filed or instituted, such appeals, legal
challenges, requests for rehearing, or referenda shall have been fully and finally resolved
in a manner acceptable to Developer in its sole and absolute discretion, and such that no
further appeals, legal challenges, requests for rehearing, or referenda are possible, and
(b) approved (including without limitation, all conditions associated therewith) by
Developer in its sole and absolute discretion.
2.5.5 Project Construction Permits. City shall have reviewed and
approved the demolition, grading and building permits necessary for Developer to
develop and construct the Project, and City shall be ready to issue said permits subject to
payment of applicable fees.
2.5.6 Title Policy. Developer shall have accepted or waived in accordance
with Section 2.9 all disapproved Exceptions. The Title Company shall, upon payment of
Title Company's regularly scheduled premium, be irrevocably committed to issue the Title
Policy upon recordation of the Grant Deed subject only to the Condition of Title.
2.5.7 Equity Funding/Construction Loan. Developer shall have secured all
necessary equity commitments and acquisition and construction loans, if any, for 100% of
Mixed Use Property acquisition and Project development and construction costs as
identified in the Sources and Uses, and shall have closed or shall be ready to close
concurrently with Closing.
2.5.8 Absence of Proceedings. There shall be an absence of any
condemnation, environmental or any other pending governmental, administrative or legal
proceeding with respect to the Mixed Use Property which would materially and adversely
affect Developer's intended uses of the Mixed Use Property, the development of the
Project, or value of the Mixed Use Property.
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2.5.9 No Material Adverse Change. There shall not have occurred
between the Date of Agreement and the Closing a material adverse change to the
physical, environmental or title condition of the Mixed Use Property.
2.5. 10 No Leases or Parties in Possession. Successor Agency shall have
demonstrated to Developer the ability to deliver fee title to the Mixed Use Property to
Developer free and clear of any tenants, lessees, licensees or any third party occupants
or parties in possession, and executed the Title Company's standard form Commercial
Owner's Affidavit as required by Section 2.8.2(f) below.
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accordance with Section 2.14 the Site Condition. E
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2.6 Escrow. Within three (3) calendar days of the Date of Agreement, the Z
parties shall open an escrow with Escrow Agent for the conveyance of the Mixed Use
Property to Developer ("Escrow").
2.6.1 Costs of Escrow. Escrow Agent shall charge: (i) Developer for the
following: the recording cost of the Grant Deed and other closing documents, the
incremental excess cost of the premium for the ALTA extended coverage title policy, the
cost of Endorsements (as hereinafter defined), if any, and one half of the escrow fees
charged by the Escrow Agent; and (ii) Successor Agency for one half of escrow fees
charged by Escrow Agent, Successor Agency's share of proration's and the cost of the
CLTA title policy. Successor Agency shall take all actions and pay all charges and costs
(if any) required by Section 2.9 and 2.10.
2.6.2 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Developer and Successor Agency with respect to the conveyance of the
Mixed Use Property to Developer, and the Escrow Agent to whom these instructions are
delivered is hereby empowered to act under this Agreement. Insurance policies for fire or
casualty are not to be transferred. All funds received in the escrow shall be deposited in
interest-bearing accounts for the benefit of the depositing party in any state or national
bank doing business in the State of California. All disbursements shall be made by check
or wire transfer from such accounts. If, in the opinion of either party, it is necessary or
convenient in order to accomplish the Closing, such party may provide supplemental
escrow instructions; provided that if there is any inconsistency between this Agreement
and the supplemental escrow instructions, then the provisions of this Agreement shall
control. The Closing shall take place as set forth in Section 2.7 below. Escrow Agent is
instructed to release Successor Agency's and Developer's escrow closing statements to
the respective parties.
2.6.3 Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
(a) Pay and charge Developer for the excess premium for the
ALTA Title Policy, including any endorsements requested by Developer.
(b) Pay and charge Developer and Successor Agency for escrow
fees, charges, and costs as provided in Section 2.6.1.
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(c) Disburse funds as provided in Section 2.6.3(g) below and
record the Grant Deed, Quitclaim Deed -Close of Escrow, and Assignment and
Assumption Agreement when the Joint Condition Precedent, Developer Conditions
Precedent and Successor Agency Conditions Precedent have been fulfilled or waived in
writing by Developer and Successor Agency, as applicable. Immediately following
recordation of the Grant Deed Escrow Agent shall first record the Quitclaim Deed -Close
of Escrow, then the Assignment and Assumption Agreement, and thereafter any other
recordable documents delivered into escrow for the Closing.
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(d) Do such other actions as necessary, including obtaining and m
issuing the Title Policy, to fulfill its obligations under this Agreement.
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deliver any instrument, affidavit, and statement, and to perform any act, reasonably Z
necessary to comply with the provisions of FIRPTA, if applicable, and any similar state act
and regulations promulgated thereunder.
(f) Prepare and file with all appropriate governmental or taxing
authorities uniform settlement statements, closing statements, tax withholding forms
including IRS 1099-S forms, and be responsible for withholding taxes, if any such forms
are provided for or required by law.
(g) Disburse the Purchase Price less Successor Agency's share
of costs of Escrow in accordance with instructions to be provided by City and Successor
Agency.
2.7 Closing. The escrow for conveyance of the Mixed Use Property shall close
("Close of Escrow") within 30 days after the satisfaction, or waiver by the appropriate
party, of the Joint Condition Precedent, all of the Successor Agency Conditions
Precedent, and all of the Developer Conditions Precedent, which shall occur in no event
later than the Outside Date. If Closing does not occur on or before the Outside Date, then
this Agreement shall automatically terminate; provided, however, that the Outside Date
may be extended in accordance with an Environmental Force Majeure Delay or by mutual
agreement of the parties, each in its sole discretion in accordance with Section 6.2 below.
For purposes of this Agreement, "Closing" shall mean the time and day the Grant Deed is
recorded with the Los Angeles County Recorder.
2.8 Delivery of Documents and Closing Funds.
2.8.1 At or before Closing, Developer shall deposit into escrow the
following items with respect to the Mixed Use Property:
(a) Funds in an amount necessary to consummate the Closing,
including the Purchase Price and escrow costs set forth in Sections 2.2 and 2.6.1,
respectively;
(b) one original executed and acknowledged Grant Deed;
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(c) one original executed and acknowledged Assignment and
Assumption Agreement; and
(d) one original executed Preliminary Change of Ownership
Report for the Mixed Use Property.
2.8.2 At or before Closing, Successor Agency shall deposit, or cause City
to deposit, into escrow the following items with respect to the Mixed Use Property:
(a) one original executed and acknowledged Grant Deed;
(b) one original executed and acknowledged Quitclaim
Deed -Close of Escrow by City;
(c) one original executed and acknowledged Assignment and
Assumption Agreement by Successor Agency and City;
(d) one duly executed non -foreign certification for the Mixed Use
Property in accordance with the requirements of Section 1445 of the Internal Revenue
Code of 1986, as amended;
(e) one duly executed California Form 593-W Certificate for the
Mixed Use Property or comparable non -foreign person affidavit;
(f) one Commercial Owner's Affidavit in the standard form of the
Title Company;
(g) any documents to be recorded as part of Developer's
financing of the Project which Successor Agency has approved in writing pursuant to
Section 3.7, along with a Request for Notice of Default executed by Successor Agency;
and
(h) all additional items, if any, not identified herein but
nevertheless required for the Closing.
2.8.3 At Closing, Successor Agency and Developer shall each deposit
such other instruments as are reasonably required by the Title Company or otherwise
required to close the escrow and consummate the conveyance of the Mixed Use Property
in accordance with the terms hereof.
2.9 Review of Title. The Successor Agency shall cause the Title Company to
deliver to Developer a standard CLTA preliminary title report or reports (the "Title
Report(s)") with respect to the title to the Mixed Use Property, together with legible copies
of the documents underlying the exceptions ("Exceptions") set forth in the Title Reports,
within thirty (30) days from the date of approval of the Certificate of Compliance for the
Mixed Use Property. The Developer shall have the right to reasonably approve or
disapprove the Exceptions; provided, however, that the Developer hereby approves the
following Exceptions:
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a) The Redevelopment Plan;
b) The lien of any non -delinquent property taxes and assessments
(to be prorated at Close of Escrow),
Developer shall have thirty (30) days from the date of its receipt of the Title
Report and all Exceptions to give written notice to Successor Agency and Escrow Agent
of Developer's approval or disapproval of any of such Exceptions set forth in the Title
Report, in its reasonable discretion. Developer's failure to give written approval or
disapproval of the Title Report within such time limit shall be deemed Developer's °
disapproval of the Title Report. If Developer notifies Successor Agency of its disapproval 00
of any Exceptions in the Title Report, Successor Agency shall have the right, but not the
obligation, to remove any disapproved Exceptions within thirty (30) days after receiving c
written notice of Developer's disapproval or provide assurances satisfactory to Developer Z
that such Exception(s) will be removed on or before the Closing. If Successor Agency
cannot or does not elect to remove any of the disapproved Exceptions within that period,
Developer shall have fifteen (15) days after the expiration of such thirty (30) day period to 00
either give the Successor Agency written notice that Developer elects to proceed with the LO
purchase of the Mixed Use Property subject to the disapproved Exceptions not removed r
by the Successor Agency or to give the Successor Agency written notice that the w
Developer elects to terminate this Agreement. The Exceptions to title to the Mixed Use w
Property approved by Developer as provided herein shall hereinafter be referred to as the
"Condition of Title" of the Mixed Use Property. The Developer shall have the right to a
approve or disapprove any further Exceptions reported by the Title Company after the N
Developer has approved the Condition of Title for the Mixed Use Property (which are not V
created by Developer) including without limitation, any and all new exceptions disclosed a
by a survey of the Mixed Use Property. The Successor Agency shall not voluntarily R
create any new exceptions to title following the date of this Agreement.
2.10 Title Insurance. Concurrently with the recordation of the Grant Deed
conveying the fee interest in the Mixed Use Property to Developer, there shall be
issued to Developer, an ALTA owner's policy of title insurance ("Title Policy'),
together with such endorsements as are requested by the Developer, issued by the
Title Company insuring that the Condition of Title is as approved by Developer
pursuant to Section 2.9 of this Agreement. The Title Company shall provide the
Successor Agency with a copy of the Title Policy. The Successor Agency shall pay
that portion of the premium for the Title Policy equal to the cost of a CLTA standard
coverage Title Policy in the amount of the Coverage Amount. Any additional costs,
including the additional incremental cost of an ALTA policy or any endorsements
requested by the Developer, shall be borne by the Developer. Nothing herein shall be
deemed to obligate the Successor Agency to pay for any additional premium or other
charge necessary for the issuance of said Title Policy.
2.11 Property Taxes and Assessments. Ad valorem taxes and assessments
levied, assessed or imposed on the Mixed Use Property for any period prior to the
Closing, if any, shall be paid by Successor Agency. Ad valorem taxes and assessments
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levied, assessed or imposed on the Mixed Use Property acquired by Developer or any
other improvements thereon, for the period after the Closing shall be paid by Developer.
2.12 Documents. Successor Agency represents and warrants that, to the best of
the Successor Agency' Actual Knowledge, as of the Date of Agreement, Successor
Agency has furnished Developer with copies or provided Developer with access to any
and all material existing surveys, inspection reports, environmental and/or hazardous
material reports, and any other data, reports, studies, agreements, correspondence and
other writings, including that certain Preliminary Report issued by Title Company,
Effective Date December 18, 2015, Order No. NHSC-5061853, as may be subsequently m
amended and supplemented; Phase II Environmental Assessment dated February 28, 15
2008, prepared by Atkins Environmental H.E.L.P., Inc.; Geotechnical Engineering E
Investigation Report, dated November 14, 2007, prepared by Rybak Geotechnical, Inc.; c
Asbestos Report, dated July 24, 2006, prepared by Atkins Environmental H.E.L.P., Inc.;
Lead Based Paint Survey Report, dated May 5, 2011, prepared by Atkins Environmental
H.E.L.P., Inc.; ALTA/ACSM Land Title Survey, dated October 5, 2015, prepared by
Sitetech, Inc.; Phase II Environmental Site Assessment & Limited Subsurface
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Investigation Report, dated November 5, 2015, prepared by Atkins Environmental
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H.E.L.P., Inc.; Geotechnical Investigations, dated November 10, 2015, prepared by
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Geocon West, Inc.; and Due Diligence / Initial Site Investigation, dated December 21,
2015, prepared by Sitetech Inc. (collectively, "Reports"), pertaining to the physical,
environmental and/or title condition of the Mixed Use Property, and the use and
development of the Mixed Use Property, which are in Successor Agency's possession or
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control. Successor Agency also represents and warrants that, to the best of the
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Successor Agency' Actual Knowledge, as of the Date of Agreement, Successor Agency
has furnished Developer with copies of any and all unrecorded leases, service contracts,
easements, licenses and/or other unrecorded agreements ("Unrecorded Agreements")
(collectively, the Unrecorded Agreements and Reports are referred to herein as the
"Documents") affecting the Mixed Use Property, or portion thereof. Successor Agency
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shall notify Developer in writing of any material changes to any Documents of which
Successor Agency becomes aware of before Closing. Some of the Reports were
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provided to Successor Agency by Serrano pursuant to access provided to the Old Town
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Newhall Property in accordance with the ENA. Successor Agency acknowledges that
these Reports were provided to it by Serrano with no representation or warranty as to
their completeness or accuracy. Accordingly, Successor Agency makes no
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representation or warranty regarding the completeness or accuracy of any Documents
provided to Developer. Successor Agency shall terminate any and all Unrecorded
Agreements prior to Closing.
2.13 AS -IS CONVEYANCE. SUBJECT TO SATISFACTION OF THE
DEVELOPER CONDITIONS PRECEDENT, DEVELOPER SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT SUCCESSOR AGENCY IS SELLING AND
DEVELOPER IS PURCHASING AS OF THE CLOSING THE MIXED USE PROPERTY
ON AN "AS IS WITH ALL FAULTS" BASIS, CONDITION AND STATE OF REPAIR
INCLUSIVE OF ANY AND ALL FAULTS AND DEFECTS, LEGAL, PHYSICAL, OR
ECONOMIC, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE
CLOSING ("AS -IS CONDITION") AND, EXCEPT AS PROVIDED IN SECTIONS 1.2.1
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AND 2.12, DEVELOPER IS NOT RELYING ON ANY REPRESENTATIONS OR
WARRANTIES FROM SUCCESSOR AGENCY OR ANY OF SUCCESSOR AGENCY'S
ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES OR
ATTORNEYS (EACH, A "SUCCESSOR AGENCY PARTY" AND COLLECTIVELY,
"SUCCESSOR AGENCY PARTIES") AS TO ANY MATTERS CONCERNING THE
MIXED USE PROPERTY.
2.14 Independent Investigation; UST Removal Work. Prior to the Closing,
Successor Agency has provided Developer a right of access to the Old Town Newhall
Property pursuant to the terms of the ENA for purposes of physical investigation,
including but not limited to, soil and groundwater testing, environmental audits, storm
water retention analysis, and adequacy of utilities including water, sewer, gas and
electricity. Developer acknowledges, agrees, represents, and warrants that, prior to
Closing, Developer has been given a full opportunity to obtain, review, inspect and
investigate each and every aspect of the Mixed Use Property, either independently or
through agents of the Developer's choosing, including the following (herein collectively
referred to as the "Site Condition") :
(a) The size and dimensions of the Mixed Use Property.
(b) The availability and adequacy of water, sewage, fire
protection, and any utilities serving the Mixed Use Property.
(c) All matters relating to title including extent and conditions of
title to the Mixed Use Property, taxes, assessments, and liens.
(d) All legal and governmental laws, statutes, rules, regulations,
ordinances, limitations on title, restrictions or requirements concerning the Mixed Use
Property including zoning, use permit requirements and building codes.
(e) Natural hazards, including flood plain issues, currently or
potentially concerning or affecting the Mixed Use Property.
(f) The physical, legal, economic and environmental condition
and aspects of the Mixed Use Property, and all other matters concerning the conditions,
use or sale of the Mixed Use Property, including any permits, licenses, agreements, and
liens, zoning reports, engineers' reports and studies and similar information relating to the
Mixed Use Property. Such examination of the condition of the Mixed Use Property has
included examinations of the soil, geology, groundwater, the presence of known or
unknown faults, and for the release, presence or absence of known or unknown
Hazardous Materials in, on, or under the Mixed Use Property as Developer deemed
necessary or desirable.
(g) Any easements and/or access rights affecting the Mixed Use
Property.
(h) Any contracts and other documents or agreements affecting
the Mixed Use Property.
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As a result of Developer's investigation of the Mixed Use Property, Developer has
uncovered the presence of three (3) underground storage tanks ("USTs") and other
underground structures and associated piping, as well as asbestos floor tile. Developer
has secured a proposal dated December 2, 2015, from Atkin Environmental Help, Inc., to
remove the USTs, underground structures, associated piping and asbestos floor tiles, as
well as the removal and disposal of soil impacted by releases from the USTs, and backfill
of clean material in the areas of excavation ("UST Removal Construction"), and
preparation and approval of closure reports for the USTs, and securing a no further action
("NFA") letter from the appropriate regulatory agencies for the Old Town Newhall
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Property, if appropriate ("UST Removal Regulatory Approval")(co llectively the UST
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Removal Construction and UST Removal Regulatory Approval is referred to herein as the
"UST Removal Work").
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Within two hundred seventy (270) days of the Date of Agreement, Developer and
Successor Agency shall execute and enter into a right of entry agreement, in a form to be
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agreed to by Successor Agency, acting through its Executive Director and General
Counsel, and Developer providing Developer access to the Old Town Newhall Property to
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commence, undertake and complete the UST Removal Work. Neither Developer nor
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Successor Agency shall be in default of this Agreement if a right of entry agreement is not
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timely approved and executed by either Party. Should a right of entry agreement not be
timely approved and executed by Developer and Successor Agency, then this Agreement
shall terminate and neither Party shall have any liability, Claim or obligation to the other;
provided, however, that the Parties may extend the date for performance by mutual
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agreement, each in its sole discretion, in accordance with Section 6.2 below. If the
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Parties timely approve and execute a right of entry agreement, then Developer shall,
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within ninety (90) days following approval of the Development Permit and expiration of all
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applicable appeal periods, commence or cause to be commenced the UST Removal
Work on the Old Town Newhall Property and complete, or cause to be completed, the
UST Removal Construction within one hundred twenty (120) days thereafter. The UST
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Removal Regulatory Approval shall be completed no later than sixty (60) days prior to the
Outside Date for Closing the Mixed Use Property, subject to such extension as shall be
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provided due to an Environmental Force Majeure Delay in accordance with Section 6.2
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below.
Developer shall, within fifteen (15) days from the date of completion of the UST
Removal Work, give written notice to Successor Agency of Developer's approval or
disapproval of any Site Condition, in its reasonable discretion. Developer's failure to give
written approval or disapproval of the Site Condition within such time limit shall be
deemed Developer's disapproval of the Site Condition. If Developer notifies Successor
Agency of its disapproval of the Site Condition or is deemed to have disapproved the Site
Condition, Successor Agency shall have the right, but not the obligation, to remedy any
disapproved Site Condition within thirty (30) days thereafter or provide assurances
satisfactory to Developer that such Site Condition will be remedied on or before the
Closing. If Successor Agency cannot or does not elect to remedy any disapproved Site
Condition within that period, Developer shall have fifteen (15) days after the expiration of
such thirty (30) day period to either give the Successor Agency written notice that
Developer elects to proceed with the purchase of the Mixed Use Property subject to the
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disapproved Site Condition not remedied by the Successor Agency or to give the
Successor Agency written notice that the Developer elects to terminate this Agreement.
As shall be provided in the right of entry agreement, Developer shall have the right
to cancel all or any portion of the UST Removal Work to be undertaken on the Old Town
Newhall Property prior to its completion. Upon a determination by Developer to cancel all
or any portion of the UST Removal Work, Developer shall deliver to Successor Agency (i)
written notice of said cancellation concurrently with the notice provided to the party
Developer contracted with to undertake the UST Removal Work, (ii) a detailed description
of the UST Removal Work completed and that which has been cancelled, and (iii) m
evidence that said contractor, materialmen and suppliers have been paid for all sums due
for work, materials and supplies provided through the date of cancellation and any sum
due as a result of the cancellation of said contract. This Agreement shall then terminate c
as of the date of the notice of cancellation delivered by Developer to Successor Agency.
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Upon termination of this Agreement pursuant to this Section 2.14, as shall be
provided in a right of entry agreement, if timely approved and executed, any costs, fees or 00
expenses incurred by Developer with respect to the UST Removal Work shall be the sole Lo
responsibility of Developer; Successor Agency shall have no obligation or liability to r
Developer or any party undertaking work directly or indirectly related to the UST Removal
Work; and Developer shall defend, indemnify and hold Successor Agency free and w
harmless from Claims related to the UST Removal Work on the Old Town Newhall
Property. a
2.15 Disclaimers. Developer acknowledges and agrees that except as expressly
set forth in Section 1.2.1 of this Agreement: (i) neither Successor Agency, nor any
Successor Agency Party, has made any representations, warranties, or promises to
Developer, or to anyone acting for or on behalf of Developer, concerning the condition of
the Mixed Use Property or any other aspect of the Mixed Use Property; (ii) the condition of
the Mixed Use Property has been independently evaluated by Developer prior to the
Closing; and (iii) any information, including any engineering reports, architectural reports,
feasibility reports, marketing reports, title reports, soils reports, environmental reports,
analyses, data or other similar reports or information of whatever type or kind, if any,
which Developer has received or may hereafter receive from Successor Agency or any
Successor Agency Party were and are furnished without warranty of any kind, excluding
the Successor Agency's Actual Knowledge of the untruthfulness of such reports or
information, and on the express condition that Developer has made its own independent
verification of the accuracy, reliability and completeness of such information and that
Developer may rely on the foregoing at its own peril and knowingly assumes such risk.
2.16 Waivers and Releases. Developer hereby waives, releases and discharges
forever the Successor Agency and Successor Agency Parties from all present or future
claims, demands, suits, legal and administrative proceedings and from all liabilities,
obligations, losses, damages, deficiencies, fines, penalties, costs and other expenses,
including reasonable attorneys' fees and court costs, arising out of or in any way
connected with the Site Condition, whether discovered before or after the Closing, and
whether existing or created on the Mixed Use Property before or after the Closing, except
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that arising out of (i) the Successor Agency's failure to disclose any information regarding
the Site Condition within the Successor Agency's Actual Knowledge, or (ii) the gross
negligence or willful misconduct of the Successor Agency or Successor Agency Parties,
or any of them.
Developer acknowledges that it is aware of and familiar with the provisions of
California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR."
As related to this Section 2.16, Developer hereby waives and relinquishes all rights
and benefits which it may have under California Civil Code Section 1542.
INITIALS: DEVELOPER
3. ENTITLEMENT AND DEVELOPMENT OF THE PROJECT.
3.1 Schedule of Performance. Within the times set forth in the Schedule of
Performance, attached hereto as Exhibit D, Developer shall use its best efforts to apply
for and secure all required permits, entitlements and governmental approvals as set forth
herein, and thereafter Developer shall commence and complete construction of the
Project, and satisfy all of Developer's obligations under this Agreement within the times
established therefor in the Schedule of Performance, as the same shall be extended by
Force Majeure Delays or Agreed Extensions of Performance pursuant to Section 6.2.
The Schedule of Performance is subject to revision in writing from time to time as may be
agreed to in the sole discretion of Developer and the Executive Director, or his or her
designee. However, as provided in Section 6.2, in no event may Force Majeure Delays or
Agreed Extension of Performance extend the Outside Date for Closing by more than one
hundred eighty (180) calendar days; however, notwithstanding the foregoing, an
Environmental Force Majeure Delay may extend the Outside Date for Closing by more
than one hundred eighty (180) calendar days.
3.2
in the Schede
shall approve
Property, and
certificate of
ance,
operty. Within the times set forth
prepare and Successor Agency
a plat map and legal description of the area comprising the Mixed Use
Successor Agency shall thereafter process and obtain City approval of a
compliance for the Mixed Use Property as a separate legal parcel in
accordance with the California Subdivision Map Act and Chapter 16.35 of the Municipal
Code.
3.3 Entitlement of the Project. Within the times set forth in the Schedule of
Performance, the Developer shall submit all applications for and secure all required
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Project Approvals, including the Development Permit, necessary for the development and
construction of the Project.
3.4 Permits. Within the times set forth in the Schedule of Performance,
Developer, at its expense, shall use its best efforts to apply for and secure or cause to be
applied for and secured any and all permits and approvals which may be required by City
and any other governmental agency having jurisdiction over the Project, including permits
for the demolition and removal of any structures or improvements, if any, on the Mixed
Use Property, and (if applicable) encroachment or right of entry permits for performance
of the off-site utility improvements required by the Project Approvals. m
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Within the times set forth in the Schedule of Performance, Developer shall: (a)
submit to City and any other governmental agency having jurisdiction over the Project, c
plans necessary for issuance of all demolition, grading and building permits required to Z
undertake, develop and construct the Project; and (b) secure from City and any other
governmental agency having jurisdiction over the Project all demolition, grading and
building permits required to undertake, develop and construct the Project.
3.5 Development of Project Improvements. Within the times set forth in the
Schedule of Performance, the Developer shall construct and develop the Project in
accordance with the Project Approvals, and Project Agreements. All such work related to
the Project shall be performed by licensed contractors.
3.6 Cost of Development. All the costs of site preparation (including demolition
and removal of all structures or improvements on the Mixed Use Property), planning,
designing, constructing and developing the Project, incurred by Developer shall be borne
solely by Developer.
3.7 Sources and Uses. Within the times set forth in the Schedule of
Performance, Developer shall submit to Successor Agency for review and approval a
pro -forma budget (a) identifying reasonably anticipated and estimated costs of
purchasing the Mixed Use Property and developing and constructing the Project, and (b)
identification of the anticipated sources of such funds ("Sources and Uses"). The
Sources and Uses shall be submitted no later than (i) thirty (30) calendar days following
the Date of Agreement, (ii) thirty (30) calendar days following approval of the Project
Approvals, excluding the Subdivision, (iii) thirty (30) calendar days following Developer's
receipt of a commitment letter from its construction lender for the Project, and (iv) no less
than five (5) calendar days following Developer's receipt of final loan documents
evidencing construction financing for the Project and, in any event, prior to Closing. The
Sources and Uses shall be updated from time to time before the Closing as provided
herein and to the extent such information is available, shall be accompanied by evidence
reasonably satisfactory to Successor Agency that upon implementation of the Sources
and Uses, Developer shall have sufficient funds to meet all budget requirements.
Successor Agency shall conduct its review and approval of the Sources and Uses
submitted in a timely manner so as not to delay Closing. Successor Agency's approval of
the Sources and Uses shall not be unreasonably withheld, conditioned or delayed.
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3.8 Insurance Requirements. Prior to Commencement of Construction and
until the completion of construction of the Project, as evidenced by recording of the
Quitclaim Deed -Final Completion pursuant to Section 5.4.3, Developer shall take out and
maintain or shall cause its contractor to take out and maintain, a commercial general
liability policy with a minimum limit of Two Million Dollars ($2,000,000) per occurrence for
bodily injury, personal injury and property damage, or such other higher policy limits as
may be required by Developer's lenders or other institutions providing financing to
Developer for the Project. Coverage shall be at least as broad as Insurance Services
Office Commercial General Liability coverage (occurrence Form CG 0001). If commercial
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general liability insurance or other form with a general aggregate is used, the general
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aggregate limit shall be at least Five Million Dollars ($5,000,000), inclusive of any
umbrella policy. Developer and each of its contractors shall also take out and maintain a
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comprehensive automobile liability policy in an amount not less than One Million Dollars
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($1,000,000). Developer shall also take out and maintain, or shall cause its contractor to
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take out and maintain, contractor's pollution liability insurance policy in an amount not
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less than One Million Dollars ($1,000,000) per occurrence and annual aggregate.
Starting at the commencement of framing the Project and until Final Completion of
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the Project, Developer shall also obtain and maintain builder's all-risk insurance in an
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amount not less than the full insurable cost of the improvements to be constructed, or
caused to be constructed, on a replacement cost basis, or such other greater policy limits
as may be required by Developer's lenders or other institutions providing financing for the
Project. Further, Developer shall furnish or cause to be furnished to Successor Agency
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evidence reasonably satisfactory to Successor Agency that Developer and any contractor
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with whom it has contracted for the performance of work on the Mixed Use Property or
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otherwise pursuant to this Agreement carries workers' compensation insurance as
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required by law.
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Companies writing the insurance required hereunder shall be licensed to do
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business in the State of California. Insurance is to be placed with insurers with a current
A.M. Best's rating of no less than A:VII or otherwise reasonably acceptable to Successor
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Agency. The commercial general liability, comprehensive automobile, and contractor's
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pollution liability insurance policies hereunder shall name Successor Agency and
Successor Agency Parties as additional insureds with respect to liability arising out of
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work or operations performed by or on behalf of the Developer on or about the Mixed Use
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Property, including materials, parts or equipment furnished in connection with such work
or operations.
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Developer shall furnish Successor Agency with a certificate of insurance
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evidencing the required insurance coverage and a duly executed endorsement
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evidencing such additional insured status. To the extent provided by the insurance
carrier, the insurance policies shall be endorsed to notify Successor Agency of any
material change, cancellation or termination of the coverage at least 30 days in advance
of the effective date of any such material change, cancellation or termination. Coverage
provided hereunder by Developer shall be primary insurance and shall not be contributing
with any insurance, self-insurance or joint self-insurance maintained by Successor
Agency or any Successor Agency Party, and the policy shall so provide. Any insurance,
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self-insurance or joint self-insurance maintained by Successor Agency or any Successor
Agency Party shall be excess of and shall not contribute with the insurance required to be
maintained by Developer. The insurance policies shall contain a waiver of subrogation
for the benefit of Successor Agency and any Successor Agency Party. The required
certificate and endorsement for the Project shall be furnished by the Developer to
Successor Agency prior to the commencement of construction of the Project.
Any deductibles or self-insured retentions must be declared to and approved by
Successor Agency (which shall not be unreasonably withheld, conditioned or delayed),
which may require Developer to provide proof of its ability to pay losses and costs of m
related investigation, claim administration, and defense expenses within the retention.
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3.9 Rights of Access. Prior to recording of the Quitclaim Deed -Final c
Completion pursuant to Section 5.4.3, Successor Agency representatives shall have the
right of access to the Mixed Use Property, without charges or fees, at reasonable times
and after prior arrangement with Developer, so long as such representatives comply with
all safety rules of Developer and its contractors and insurers and do not unreasonably 00
interfere with the progress of construction of the Project. Nothing herein shall be deemed LO
to limit the ability of City to conduct code enforcement and other administrative r
inspections of any portion of the Mixed Use Property or Project at any time in accordance
with applicable law. Successor Agency shall indemnify, defend, protect and hold E
Developer harmless from any Claims to the extent caused by the negligence or willful
misconduct of Successor Agency representatives in the course of accessing the Mixed a
Use Property. a
3.10 Compliance With Applicable Laws. Developer shall carry out, and shall
ensure that its contractors and subcontractors carry out the UST Removal Work and
Project work in conformity with all Applicable Laws, including all applicable state labor
laws and standards; the City zoning and development standards; building, plumbing,
mechanical and electrical codes; all other provisions of the Municipal Code; and all
applicable disabled and handicapped access requirements, including the Americans With
Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et
seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil
Code Section 51, et seq.
3.11 Final Completion of Prosect. Following Final Completion of the Project, any
party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in
the Mixed Use Property shall not (because of such ownership, purchase, lease or
acquisition) incur any obligation or liability under this Agreement with respect to such
Project. Except as otherwise provided herein, after Final Completion of the Project,
neither Successor Agency nor any other person shall have any rights, remedies or
controls with respect to the Mixed Use Property that it would otherwise have or be entitled
to exercise under this Agreement as a result of a default in or breach of any provision of
this Agreement, and the respective rights and obligations of the parties with reference to
the Mixed Use Property shall be as set forth in the Grant Deed.
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3.12 Liens and Stop Notices. Developer shall not allow to be placed on the
Mixed Use Property or any part thereof or any adjacent property (including without
limitation any portion of the Old Town Newhall Property then owned by Successor
Agency) any lien or stop notice arising from any work or materials performed or provided
or alleged to have been performed or provided by Developer's contractors,
subcontractors, agents or representatives, including but not limited to the UST Removal
Work. If a claim of a lien or stop notice is given or recorded affecting the Mixed Use
Property or any adjacent property, Developer shall within 60 days of Developer becoming
aware of such recording or service: (i) pay and discharge the same; or (ii) effect the c
release thereof by recording and delivering to the City Manager a surety bond in sufficient m
form and amount.
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3.13 Right of Successor Agency to Satisfy Other Liens After any Closing. After c
Closing, and provided the requirements set forth in Section 3.12 have not been met by
Developer, Successor Agency shall have the right, but not the obligation, upon not less w
than ten (10) days prior written notice to Developer, to satisfy any such liens or stop
notices. In such event, Developer shall be liable for and Successor Agency shall be 00
entitled to reimbursement by Developer for the amount reasonably paid by the Successor
Agency to discharge such lien or satisfy such stop notice. r
3.14 Mortgage, Deed of Trust, Sale and Lease -Back Financing.
3.14.1 No Encumbrances Except Mortaaaes. Deeds of Trust for
Development. Prior to Final Completion of the Project, mortgages and deeds of trust will
be permitted on the Mixed Use Property only to the extent otherwise provided in this
Agreement, and only for the purpose of financing the acquisition and/or construction and
development of the Project improvements (including but not limited to, design, planning,
permitting, remediation, site preparation and horizontal and vertical construction) on the
Mixed Use Property owned by Developer. Following Final Completion of the Project,
mortgages and deeds of trust shall be permitted for any purpose, and Successor Agency
shall have no approval or disapproval rights with respect thereto. The preceding to the
contrary notwithstanding, following the Substantial Completion of improvements for the
Project, Developer shall be permitted to obtain, without the consent or approval of the
Successor Agency, permanent financing to be secured by the Mixed Use Property upon
which such improvements were Substantially Completed. The words "mortgage" and
"deed of trust" as used herein shall include other appropriate modes of financing real
estate acquisition, construction, and land development.
3.14.2 Holder Not Obligated to Construct Improvements. Neither the holder
of any mortgage or deed of trust on the Mixed Use Property nor any person or entity,
including any deed of trust beneficiary or mortgagee, who acquires title or possession to
the Mixed Use Property, by foreclosure, trustee's sale, deed in lieu of foreclosure or
otherwise, shall be obligated by the provisions of this Agreement to construct or complete
the Project improvements or to guarantee such construction or completion. Nothing in
this Agreement shall be deemed to or be construed to permit or authorize any such
holder, person or entity to devote the Mixed Use Property or portion thereof to any uses or
to construct any improvements thereon other than those uses and Project improvements
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provided for or authorized by this Agreement, the Project Approvals, or as otherwise
agreed to by the Successor Agency.
3.14.3 Notice of Default to Mortgagee or Deed of Trust Holders; Right to
Cure. With respect to any mortgage or deed of trust granted by Developer on the Mixed
Use Property, whenever Successor Agency shall deliver any Notice or demand to
Developer with respect to any breach or Default by Developer hereunder, Successor
Agency shall at the same time deliver to each holder of record of any mortgage or deed of
trust on the Mixed Use Property a copy of such Notice or demand. No Notice of Default
shall be effective as to the holder unless such Notice is given. Each such holder shall
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(insofar as the rights of Successor Agency are concerned) have the right, at its option,
within sixty (60) days after the receipt of the Notice, to cure or remedy or commence to
cure or remedy any such Default and to add the cost thereof to the mortgage debt and the
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lien of its mortgage. If such breach or Default cannot reasonably be cured within such
sixty (60) day period, then such holder shall have a reasonable period of time following
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the expiration of such sixty (60) day period to cure or remedy such breach or Default so
long as such holder commences such cure or remedy within the initial sixty (60) day
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period and diligently prosecutes such cure or remedy to completion. In the event
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possession of the Mixed Use Property is required to effectuate such cure or remedy, the
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holder shall be deemed to have timely cured or remedied if it commences the
proceedings necessary to obtain possession thereof within sixty (60) days, diligently
pursues such proceedings to completion, and, after obtaining possession, diligently
completes such cure or remedy (the foregoing time periods being subject to extension
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during the period that such holder is precluded from taking or pursuing any such action as
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a consequence of any bankruptcy stay or other court order). Nothing in this Agreement
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shall preclude or prevent any holder of record of any mortgage or deed of trust on the
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Mixed Use Property from curing or remedying any breach or Default by Developer
hereunder, and Successor Agency agrees to accept any such cure or remedy undertaken
by any such holder of record of any mortgage or deed of trust on the Mixed Use Property.
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3.15 Covenants Reaardina Operation. Manaaement and Maintenance Prior to
Closing. From the Date of Agreement until the Closing or earlier termination of this
Agreement, Successor Agency shall operate, manage and maintain the Mixed Use
Property in a manner generally consistent with the manner in which Successor Agency
has operated, managed and maintained the Mixed Use Property prior to the date hereof.
Notwithstanding the foregoing, from and after the Date of Agreement, excepting the
continued use of all or a portion of the Mixed Use Property for public parking and
occasional use as a farmer's market and other City sponsored events or activities,
Successor Agency shall not: (a) cause nor voluntarily permit, any new lien, encumbrance
or any other matter to cause the condition of title to be changed, without Developer's prior
written consent, other than liens or other assessments, bonds, or special district liens
including without limitation, Community Facility Districts, that arise by reason of any local,
City, Municipal or County Project or Special District; (b) enter into any agreements with
any governmental agency, utility company or any person or entity regarding the Mixed
Use Property, which would remain in effect after the Closing (other than to implement any
matter described in (a) above), without obtaining Developer's prior written consent; or (c)
amend any existing licenses, agreements or leases, or enter into any new licenses,
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agreements or leases, that would give any person or entity any right of possession to any
portion of the Mixed Use Property, or which would remain in effect after the Closing.
4. COVENANTS, RESTRICTIONS AND AGREEMENTS.
4.1 Uses. Developer shall use the Mixed Use Property, in accordance with the
Project Approvals, as a mixed use development of retail and restaurant uses on the
ground floor, with three to four floors of residential uses above the ground floor, and
approximately 85 subterranean parking spaces serving the residential complex beneath
the ground floor retail and restaurant uses. Notwithstanding anything to the contrary
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herein, including but not limited to the "Recitals", it is Developer's design and intention to
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construct the Project consistent with the Conceptual Project Plans and the governing
Specific Plan, subject to changes mandated by permitting and regulatory agencies.
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Developer retains the right, however, to continue to develop and refine the design for the
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Project and to make changes thereto as it deems fiscally responsible for an economically
viable project within the constraints described above.
4.2 Taxes and Assessments. After the Closing, it shall be Developer's
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responsibility to pay prior to delinquency all ad valorem real estate taxes and
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assessments on the Mixed Use Property and the Project, subject to Developer's right to
contest in good faith any such taxes.
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4.3 Effect and Duration of Covenants. The covenants established in this
Agreement and the Grant Deed shall, without regard to technical classification and
designation, be binding upon and inure for the benefit and in favor of the Parties hereto
and their successors and assigns. The Parties are deemed the beneficiary of the terms
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and provisions of this Agreement and the Grant Deed and of the covenants running with
the land for and in their own right and for the purposes of protecting the interests of the
Parties, in whose favor and for whose benefit this Agreement and the Grant Deed and the
covenants running with the land have been provided. This Agreement and the Grant
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Deed and the covenants therein shall run in favor of the Successor Agency and City
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without regard to whether the Successor Agency or City has been, remains, or is an
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owner of any land or interest in the Mixed Use Property. Subject to the limitations on
remedies set forth in Section 5 hereto, the Parties shall have the right, if this Agreement,
the Grant Deed or the covenants therein are breached, to exercise all rights and remedies
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and to maintain any actions or suits at law or in equity or other proper proceedings to
enforce the curing of such breaches to which it may be entitled under the terms of this
Agreement or the Grant Deed.
4.4 No Successor Agency Approval of Tenants Required. Developer shall not
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be required to obtain the Successor Agency's consent or approval as to the tenants to
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whom Developer may lease portions of the Project and the Successor Agency shall not
impose any restrictions or limitations on the nature of the tenants to whom Developer may
lease portions of the Project; except that the use of the Mixed Use Property acquired by
Developer shall be subject to the use restrictions and limitations created by the Project
Approvals and applicable zoning affecting the Project.
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4.5 Obligation to Refrain From Discrimination; Form of Non -Discrimination and
Non -Segregation Clauses. Developer covenants by and for itself and any successors in
interest that there shall be no discrimination against or segregation of, any person or
group of persons on account of any basis listed in subdivision (a) or (d) of section 12955
of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of section 12955, and section
12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy,
tenure, or enjoyment of the Mixed Use Property, any improvements thereon, or any part
thereof, nor shall the grantee or any person claiming under or through him or her, c
establish or permit any practice or practices of discrimination or segregation with m
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the Mixed Use Property herein conveyed. The E
foregoing covenants and all other provisions of this Section 4.5 shall run with the land and o
shall be contained in each subsequent grant deed conveying title to the Mixed Use w
Property, any improvements thereon, or any part thereof, to any subsequent owner, and w
the provisions of this Section 4.5 shall survive expiration or other termination of this
Agreement. 00
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Developer shall refrain from restricting the rental, sale or lease of the Mixed Use
Property or any improvements thereon, or any part thereof, on account of any basis listed
in subdivision (a) or (d) of section 12955 of the Government Code, as those bases are
defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p)
of section 12955, and section 12955.2 of the Government Code. All such deeds, leases
or contracts for the rental, sale or lease of the Mixed Use Property or any improvements
thereon, or any part thereof, shall contain or be subject to substantially the following
nondiscrimination or non -segregation clauses:
(a) In deeds the following language shall appear: "The grantee
herein covenants by and for himself or herself, his or her heirs, executors, administrators,
and assigns, and all persons claiming under or through them, that there will be no
discrimination against or segregation of, any person or group of persons on account of
any basis listed in subdivision (a) or (d) of section 12955 of the Government Code, as
those bases are defined in sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of section 12955, and section 12955.2 of the Government Code, in the
sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises
herein conveyed, nor shall the grantee or any person claiming under or through him or
her, establish or permit any practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing
covenants shall run with the land."
(b) In leases the following language shall appear: "The lessee
herein covenants by and for himself or herself, his or her heirs, executors, administrators,
and assigns, and all persons claiming under or through him or her, and this lease is made
and accepted upon and subject to the following conditions: That there shall be no
discrimination against or segregation of any person or group of persons, on account of
any basis listed in subdivision (a) or (d) of section 12955 of the Government Code, as
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those bases are defined in sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of section 12955, and section 12955.2 of the Government Code, in the
leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises
herein leased nor shall the lessee himself or herself, or any person claiming under or
through him or her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy, of
tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased."
(c) In contracts, the following language shall appear: "There
shall be no discrimination against or segregation of any person or group of persons, on m
account of any basis listed in subdivision (a) or (d) of section 12955 of the Government
Code, as those bases are defined in sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of section 12955, and section 12955.2 of the c
Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the premises, nor shall the transferee himself or herself or any person w
claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or 00
occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises." LO
4.6 Effect and Duration of Covenants. The covenants against discrimination,
as set forth in Section 4.5 shall remain in effect in perpetuity.
4.7 Sales Tax Point of Sale Designation. Developer shall use commercially
reasonable efforts to the extent allowed by law to require all persons and entities
providing bulk lumber, concrete, structural steel and pre -fabricated building components,
such as roof trusses, to be used in connection with the construction and development of,
or incorporated into, the Project, to (a) obtain a use tax direct payment permit; (b) elect to
obtain a subcontractor permit for the job site of a contract valued at Five Million Dollars
($5,000,000) or more; or (c) otherwise designate the Mixed Use Property as the place of
use of material used in the construction of the Project in order to have the local portion of
the sales and use tax distributed directly to City instead of through the county -wide pool.
Developer shall instruct its general contractor(s) for the Project to, and cause such
general contractor(s) to instruct its/their subcontractors to, cooperate with City to ensure
the local sales/use tax derived from construction of the Project is allocated to City to the
fullest extent possible. To assist City in its efforts to ensure that such local sales/use tax
is so allocated to City, Developer shall provide City with such information as shall be
reasonably requested by City regarding subcontractors working on the Project with
contracts in excess of the amount set forth above, including a description of all applicable
work and the dollar value of such subcontracts. City may use such information to contact
each subcontractor who may qualify for local allocation of use taxes to City.
Notwithstanding the foregoing, other than the cost of incidental paperwork and record
keeping, any such efforts to have the local sales/use tax derived from construction of the
Project allocated to City to the fullest extent possible shall be at no increased costs or
expense to Developer or any general contractor or subcontractor working on the Project,
and neither Developer nor any such general contractor or subcontractor shall be required
to take any action pursuant to this section that would result, directly or indirectly, (i) in any
increase in the cost of the Project, or (ii) in any such general contractor or subcontractor
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being characterized as a "reseller" (as opposed to a "consumer"), whether for purposes of
the taxation of `freight -in' charges, any fabrication activities or otherwise.
5. DEFAULTS AND REMEDIES.
5.1 Default Remedies - General. Subject to the extensions of time set forth in
Section 6.2 of this Agreement (except as to the Outside Date for Closing), failure by the
Developer or Successor Agency to perform any action or covenant required by this
Agreement within the time periods provided herein following notice and failure to cure as
described hereafter, constitutes a "Default" under this Agreement. The failure by a party °
to satisfy one or more of the Conditions Precedent as set forth in Sections 2.4 and 2.5 00
hereof shall not be a "Default" hereunder, but the failure to act in good faith and exercise
reasonable efforts to satisfy any such Condition Precedent shall constitute a "Default" c
following Notice and an opportunity to cure. A party claiming a Default shall provide a Z
written notice of default to the other party specifying the default complained of. Except as
otherwise expressly provided in this Agreement, the claimant shall not institute any
proceeding against any other party and the other party shall not be in default if such party 00
within thirty (30) days from receipt of such notice of default, commences to cure, correct
or remedy such failure or delay and completes such cure, correction or remedy with r
diligence and within a reasonable period of time considering the nature of the default. a
5.2 Default Resolution and Legal Actions.
5.2.1 Informal Default Resolution. If, following notice and an opportunity to
cure pursuant to Section 5.1 a Default remains outstanding, before institution of legal
action, the Parties shall attempt to resolve the Default in accordance with this Section
5.2.1 as a condition precedent to the filing of any action at law or equity. It is the express
intent of the Parties to attempt to resolve all Defaults arising out of or relating to this
Agreement or a breach thereof by reasonable, business -like negotiations between the
Parties without resorting to litigation. However, unless the Parties agree otherwise, and
regardless of the size or nature of the Default, the Parties shall not cease or delay
performance of their obligations under this Agreement while the Default remains
outstanding.
Successor Agency or Developer may call a meeting for resolution of any
outstanding Default. The meeting shall be held on a date within three (3) working days of
the date of a written request by any Party, which written request shall specify the nature of
and extent of the Default to be resolved and any proposed resolution thereof ("Request
to Resolve Dispute"). Unless otherwise agreed to amongst the Parties, the meeting
shall be held at the administrative offices of the Successor Agency. The foregoing
notwithstanding, the meeting shall be held at the Mixed Use Property if the ability to view
the Mixed Use Property or the Project will serve to resolve the Default.
The meeting shall be attended by representatives of the Successor Agency and
Developer and their respective consultants, contractors, subcontractors or other parties
with information relevant to the nature, extent and resolution of the Default. The Parties'
representatives attending the meeting shall have all requisite authority to resolve and
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settle the Default. The Parties shall consider retaining the services of a mediator to help
resolve and settle the Default; however, each Party reserves its discretion whether to
engage the services of a mediator. Failure of either Party to agree to the use of a
mediator shall not excuse the other Party from its obligation to attend the meeting in an
attempt to resolve and settle the Default. The meeting shall be subject to California
Evidence Code Section 1152 and the parties hereby agree that any and all information or
communications shared or disclosed during said meeting shall be subject to said
provision.
If the Default remains outstanding sixty (60) calendar days after the date of the
Request to Resolve Dispute, then either Party may, in addition to any other rights or
remedies, institute any action at law or in equity to cure, correct, prevent or remedy the
Default. The Parties agree that any applicable statute of limitation period that has not
otherwise expired shall be tolled during the sixty (60) calendar day period.
5.2.2 Institution of Legal Actions. Except as otherwise specifically
provided herein, upon the occurrence of a Default, the non -defaulting party shall have the
right, in addition to any other rights or remedies, to institute any action at law or in equity to
cure, correct, prevent or remedy any Default, or to recover damages for any Default, or to
obtain any other remedy consistent with the purpose of this Agreement. Such legal
actions must be instituted in the Superior Court of the County of Los Angeles, State of
California, or in the Federal District Court for the Central District of the State of California.
Notwithstanding anything herein to the contrary, neither party shall have the right to
recover any consequential or special damages in the event of a Default by the other party.
5.2.3 Liquidated
Escrow on the Mixed Use Pro
APPLICABLE CURE PERIODS AND ANY PERMITTED EXTENSIONS OF TIME AS
PROVIDED IN THIS AGREEMENT, IF DEVELOPER FAILS TO CLOSE ESCROW AS
REQUIRED UNDER THIS AGREEMENT (A "CLOSING DEFAULT"), THE
SUCCESSOR AGENCY MAY SUFFER DAMAGES AND THAT IT IS IMPRACTICABLE
AND INFEASIBLE TO FIX THE ACTUAL AMOUNT OF SUCH DAMAGES.
THEREFORE, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE
OF THIS AGREEMENT, IN THE EVENT OF A CLOSING DEFAULT, SUCCESSOR
AGENCY SHALL BE ENTITLED TO RETAIN DEVELOPER'S DEPOSIT. THE
DEVELOPER'S DEPOSIT SHALL SERVE AS LIQUIDATED DAMAGES TO THE
SUCCESSOR AGENCY FOR A CLOSING DEFAULT. THE VALUE OF THE
DEVELOPER'S DEPOSIT CONSTITUTES A REASONABLE ESTIMATE OF THE
DAMAGES THAT THE SUCCESSOR AGENCY WOULD INCUR IN THE EVENT OF A
CLOSING DEFAULT. RETENTION OF THE DEVELOPER'S DEPOSIT SHALL BE THE
SUCCESSOR AGENCY'S SOLE AND EXCLUSIVE REMEDY AGAINST DEVELOPER
IN THE EVENT OF A CLOSING DEFAULT, AND THE SUCCESSOR AGENCY WAIVES
ANY AND ALL RIGHT TO SEEK OTHER RIGHTS OR REMEDIES AGAINST
DEVELOPER ON ACCOUNT OF A CLOSING DEFAULT, INCLUDING WITHOUT
LIMITATION, SPECIFIC PERFORMANCE AND MONETARY DAMAGES. THE
LIQUIDATED DAMAGES PROVIDED FOR HEREIN IS NOT INTENDED AS A
FORFEITURE OR PENALTY WITHIN THE MEANING OF SECTIONS 3275 OR 3369 OF
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THE CALIFORNIA CIVIL CODE, BUT IS INTENDED TO CONSTITUTE LIQUIDATED
DAMAGES TO THE SUCCESSOR AGENCY PURSUANT TO SECTIONS 1671, 1676
AND 1677 OF THE CALIFORNIA CIVIL CODE. SUCCESSOR AGENCY WAIVES THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. BY PLACING ITS
INITIALS BELOW, DEVELOPER AND SUCCESSOR AGENCY SPECIFICALLY
CONFIRM THE ACCURACY OF THE STATEMENTS MADE ABOVE, THE
REASONABLENESS OF THE AMOUNT OF LIQUIDATED DAMAGES AGREED UPON,
AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO
EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES
OF THIS LIQUIDATED DAMAGES PROVISION.
INITIALS:
SUCCESSOR AGENCY
DEVELOPER
5.2.4 Acceptance of Service of Process. In the event that any legal action
is commenced by Developer against Successor Agency, service of process on
Successor Agency shall be made by personal service upon the City Clerk of City or in
such other manner as may be provided by law. In the event that any legal action is
commenced by Successor Agency against Developer, service of process on Developer
shall be made in any manner as may be provided by law.
5.3 Termination. In addition to the termination of this Agreement provided for
under Sections 2.7, 2.9 and 2.14 above, this Agreement may be terminated: (i) if there is
an uncured Default, after Notice from the party not in default and expiration of all cure
periods, (ii) if there is a failure of the Joint Condition Precedent, or (iii) if there is a failure of
an express Developer Condition Precedent or Successor Agency Condition Precedent
(which is not waived by the party whom the condition benefits) by timely Notice from the
party whom the condition benefits. If requested by Successor Agency, upon termination
of this Agreement, Developer shall promptly execute and deliver to Successor Agency a
quitclaim deed, in recordable form, as to the Mixed Use Property.
Upon termination of this Agreement due to failure of the Joint Condition Precedent
or by Successor Agency or Developer pursuant to Sections 2.9 or 2.14, Developer shall
be entitled to a refund of the Developer Deposit and neither Party shall have any further
liability, claim or obligation to the other. Accordingly, by initialing in the space provided
below, as of the Date of Agreement, the Parties expressly waive and release each other
from any and all manner of Claims or other compensation whatsoever, in law or equity, of
whatever kind or nature, whether known or unknown, direct or indirect, foreseeable or
unforeseeable, absolute or contingent, now existing or which may in the future arise,
including but not limited to claims for specific performance, equitable estoppel, lost
business opportunities or economic advantage, and any and all form of damages such as
compensatory, special, consequential or punitive, as a result of failure of the Joint
Condition Precedent or Successor Agency or Developer terminating this Agreement as
provided by Sections 2.7, 2.9 or 2.14, specifically including any and all rights under
California Civil Code Section 1542, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
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DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
INITIALS:
DEVELOPER SUCCESSOR AGENCY -
5.4 Successor Agency Option to Repurchase, Reenter and Repossess. Y
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5.4.1 As to Mixed Use Property. Following the Closing and subject to 00
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notice and opportunity to cure under Section 5.1 and applicable Force Majeure Delay
under Section 6.2, Successor Agency shall have the additional right, at its option, to a
repurchase, reenter and take possession of the Mixed Use Property if after conveyance w
of title to the Mixed Use Property, Developer shall:
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(a) Fail to Commence Construction of the Project within the time
set forth on the Schedule of Performance, as extended by Force Majeure Delay(s); or N
(b) Abandon or substantially suspend construction of the Project
for a period of 180 consecutive days after Commencement of Construction, as extended
by Force Majeure Delay(s).
5.4.2 Such rights to repurchase, reenter and repossess, to the extent
provided in this Agreement and Grant Deed, shall be subordinate and subject to and be
limited by and shall not defeat, render invalid or limit:
(a) Any mortgage, deed of trust or other security instrument
permitted by this Agreement (including, without limitation, any assignment of rents and
leases); or
(b) Any rights or interests provided in this Agreement for the
protection of the holder of such mortgages, deeds of trust or other security instruments.
5.4.3 To exercise its right to repurchase, reenter and take possession with
respect to the Mixed Use Property, Successor Agency shall pay to Developer in cash an
amount equal to:
(a) The Purchase Price paid by Developer for the Mixed Use
Property; plus
(b) The actual hard costs incurred by Developer and paid to third
parties for labor and materials for the construction of the improvements existing on the
Mixed Use Property at the time of the repurchase, reentry and repossession; plus
(c) The actual soft costs incurred by Developer and paid to third
parties in connection with the design and permitting of the improvements existing on the
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Mixed Use Property at the time of the repurchase, reentry and repossession and/or
contemplated to be developed on the Mixed Use Property; plus
(d) All other costs and expenses incurred by Developer and paid
to third parties in connection with this Agreement and/or the design, permitting,
construction, leasing and/or financing of the improvements existing on the Mixed Use
Property at the time of the repurchase, reentry and repossession and/or contemplated to
be developed on the Mixed Use Property; less
(e) Any actual income withdrawn or made by Developer from the
Mixed Use Property or the improvements thereon; less
(f) The total outstanding amount of any mortgages, deeds of
trust or other liens encumbering the Mixed Use Property that are superior to City's
repurchase option at the time of the repurchase, reentry and repossession.
In order to exercise such purchase option, Successor Agency shall, subject to the
instruments and provisions described above, give Developer Notice of such exercise and
Developer shall, within 60 days after Developer's receipt of such Notice, provide
Successor Agency with a detailed accounting of all of Developer's costs incurred as
provided above. Successor Agency, within 30 days thereafter, shall pay to Developer in
cash all sums owing pursuant to this Section 5.4.3, if any, and Developer shall thereupon
execute and deliver to Successor Agency a grant deed transferring to Successor Agency
all of Developer's interest in the Mixed Use Property for which Successor Agency's
repurchase option applies. If Developer conveys any portion of the Mixed Use Property to
Successor Agency pursuant to the terms of this Section 5.4.3, then Successor Agency
shall be charged with all knowledge it had regarding the Mixed Use Property before
execution of this Agreement and any information provided to it by the Developer up to and
including the time of conveyance pursuant to this Section 5.4.3.
Successor Agency acknowledges that it shall use its independent judgment and
make its own determination as to the scope and breadth of the due diligence investigation
which it shall make relative to the Mixed Use Property, or applicable portion thereof, to be
reacquired by the Successor Agency pursuant to Successor Agency's exercise of its
repurchase option.
Successor Agency's rights under this Section 5.4.3, and as set forth in the Grant
Deed, are assignable by Successor Agency to City in accordance with Section 6.3, and
shall terminate upon Final Completion. Upon Final Completion, Successor Agency shall
cause City, as successor by assignment to the Successor Agency in accordance with
Section 6.3, to execute, acknowledge and record a Quitclaim Deed -Final Completion
evidencing the termination of the repurchase option under this Section 5.4.3, as set forth
in the form attached hereto as Exhibit F and incorporated herein.
5.5 Rights and Remedies Are Cumulative. Except as specified otherwise in this
Agreement, the rights and remedies of the parties are cumulative, and the exercise by
either party of one or more of such rights or remedies shall not preclude the exercise by it,
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at the same or different times, of any other rights or remedies for the same default or any
other default by the other party, except as otherwise expressly provided herein.
5.6 Inaction Not a Waiver of Default. Except as specified otherwise in the
Agreement, any failures or delays by either party in asserting any of its rights and
remedies as to any Default shall not operate as a waiver of any Default or of any such
rights or remedies, or deprive either such party of its right to institute and maintain any
actions or proceedings which it may deem necessary to protect, assert or enforce any
such rights or remedies.
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6. GENERAL PROVISIONS. m
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6.1 Notices, Demands and Communications Between the Parties. Any c
approval, disapproval, demand, document or other notice ("Notice") which either party Z
may desire to give to the other party under this Agreement must be in writing and shall be
given by certified mail, return receipt requested and postage prepaid, personal delivery,
or reputable overnight courier (but not by facsimile or email), to the party to whom the 0;
Notice is directed at the address of the party as set forth below, or at any other address as ,N0
that party may later designate by Notice. i
To Successor Successor Agency to Redevelopment
Agency: Agency of the City of Santa Clarita
Office of the Executive Director
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Kenneth W. Striplin, Executive
Director
With a copy to: Successor Agency to Redevelopment
Agency of the City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Thomas Cole, Director of
Community Development
and: Successor Agency to Redevelopment
Agency of the City of Santa Clarita
Office of the General Counsel
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Joseph Montes, General Counsel a
To Developer:
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Serrano Development Group
500 North Brand Boulevard, Suite 2120
Glendale, CA 91203
Attention: Jason Tolleson, Principal
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With a copy to: Pacific Coast Housing Development, LLC
24233 Creekside Road
Santa Clarita, CA 91355
Attention: Jeffrey W. Paul
Any Notice shall be deemed received on the date of delivery if delivered by
personal service, on the date of delivery or refused delivery as shown by the return receipt
if sent by certified mail, and on the date of delivery or refused delivery as shown by the
records of the overnight courier if sent via nationally recognized overnight courier.
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Notices sent by a party's attorney on behalf of such party shall be deemed delivered by
such party.
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6.2 Enforced Delay; Extension of Times of Performance. In addition to specific
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provisions of this Agreement, performance by either Party hereunder shall not be deemed
to be in Default, and all performance and other dates specified in this Agreement shall be
extended, where delays or Defaults are due to causes beyond the control or without the
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fault of the party claiming an extension of time to perform, which may include the
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following: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties;
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acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight
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embargoes; lack of transportation; governmental restrictions or priority; environmental
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conditions, pre-existing or discovered, delaying the construction or development of the
Mixed Use Property, or any portion thereof following Closing; litigation; unusually severe
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weather; inability to secure necessary labor, materials or tools; acts or omissions of the
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other party; acts or failures to act of the Successor Agency or any other public or
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governmental agency or entity when the delay is not primarily caused by the actions of
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Developer and/or its agents or consultants through the submission of patently
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substandard plans, specifications or other documents (other than the acts or failures to
act of the Successor Agency which shall not excuse performance by the Successor
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Agency) (each a "Force Majeure Delay"); or environmental conditions, pre-existing or
discovered, delaying the completion of the UST Removal Construction or UST Removal
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Regulatory Approval ("Environmental Force Majeure Delay").
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An extension of time for any such cause shall be for the period of the enforced
delay and shall commence to run from the time of the commencement of the cause, if
Notice by the party claiming such extension is sent to the other party within thirty (30)
days of the commencement of the cause. For purposes of an Environmental Force
Majeure Delay, commencement of the cause shall be deemed to be date the UST
Removal Construction or UST Removal Regulatory Approval was to have been
completed as provided in Section 2.14.
If Notice is sent after such 30 day period, then the extension shall commence to
run no sooner than 30 days prior to the giving of such Notice. Any notice claiming an
extension of time for an alleged Force Majeure Delay or Environmental Force Majeure
Delay shall be supported by reliable information and documentation provided as part of
the Notice; further, the Party claiming the extension of time shall regularly update the
other Party, no less frequently than once every thirty (30) days, as to the continued
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justification of the alleged Force Majeure Delay or Environmental Force Majeure Delay,
supported by reliable information and documentation. Times of performance under this
Agreement may also be extended in writing by the mutual agreement of Successor
Agency and Developer. Notwithstanding any provision of this Agreement to the contrary,
the lack of funding to commence and/or complete the Project shall not constitute grounds
of enforced delay pursuant to this Section 6.2.
Times of performance under this Agreement may also be extended in writing by
the Successor Agency and Developer as agreed to in the sole discretion of each party
("Agreed Extension of Performance"). The Executive Director may agree to no more m
than a cumulative total of one hundred eighty (180) calendar days extension of time for
performance under this Agreement as an Agreed Extension of Performance. In no event E
shall a Force Majeure Delay, Force Majeure Delays or Agreed Extension of Performance c
extend the Outside Date for Closing by more than one hundred eighty (180) calendar ;
days; however, notwithstanding the foregoing, the Outside Date for Closing shall be w
extended by more than one hundred eighty (180) calendar days, if necessary, due to an
Environmental Force Majeure Delay. 00
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6.3 Successors and Assigns; Assignment to City. Subject to the restrictions on rr
Developer transfers set forth in Section 1.3 above, all of the terms, covenants and
conditions of this Agreement shall be binding upon Developer and Successor Agency and w
their respective successors and assigns. Whenever the term "Developer" is used in this
Agreement, such term shall include any permitted successors and assigns as herein a
provided. N
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Successor Agency's rights and obligations as set forth in Section 5.4 of this
Agreement, and as reflected in the Grant Deed, with respect to the option to repurchase, R
reenter and repossess the Mixed Use Property in the event of a violation thereof, shall be
assigned to City in accordance with the terms of the Assignment and Assumption
Agreement in the form attached hereto as Exhibit E and incorporated herein. Developer a
shall consent to said Assignment and Assumption Agreement, which shall be recorded c
concurrently with the Grant Deed at the Closing. a
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6.4 Relationship Between Successor Agency and Developer. It is hereby
acknowledged that the relationship between Successor Agency and Developer is not that x
of a partnership or joint venture and that Successor Agency and Developer shall not be
deemed or construed for any purpose to be the agent of the other. Accordingly, except as
expressly provided herein or in the exhibits hereto, Successor Agency shall have no
rights, powers, duties or obligations with respect to the development, operation,
maintenance or management of the Project. a
6.5 Successor Agency Approvals and Actions. Whenever a reference is made
herein to an action or approval to be undertaken by Successor Agency, the Executive
Director or his or her designee is authorized to act on behalf of Successor Agency, unless
specifically provided otherwise or the context requires otherwise.
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6.6 Counterparts. This Agreement may be signed in multiple counterparts,
each of which shall be deemed to be an original.
6.7 Integration. This Agreement, including the exhibits hereto, and the other
Project Agreements contain the entire understanding between the parties relating to the
transactions contemplated by this Agreement. All prior or contemporaneous agreements,
understandings, representations and statements, oral or written, other than the other
Project Agreements, are merged in this Agreement and shall be of no further force or
effect. Each party is entering this Agreement based solely upon the representations set
forth herein and upon each party's own independent investigation of any and all facts m
such party deems material.
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6.8 Brokerage Commissions. Successor Agency and Developer each c
represents to the other that it has not engaged the services of any finder or broker and Z
that it is not liable for any real estate commissions, broker's fees, or finder's fees which
may accrue by means of the conveyance of the Mixed Use Property as described in this
Agreement, or the negotiation and execution of this Agreement. Each party shall 00
indemnify, defend, protect and hold the other party harmless from any and all Claims Lo
based upon any assertion that such commissions or fees are allegedly due from the party r
making such representations. a
6.9 Titles and Captions. Titles and captions are for convenience of reference
only and do not define, describe or limit the scope or the intent of this Agreement or of any
of its terms. References to section numbers are to sections in this Agreement, unless
expressly stated otherwise. References to specific section numbers shall include all
subsections which follow the referenced section.
6.10 Interpretation. As used in this Agreement, masculine, feminine or neuter
gender and the singular or plural number shall each be deemed to include the others
where and when the context so dictates. The words "include" and "including" shall be
construed as if followed by the words "without limitation." The parties acknowledge that
each party and his, her or its counsel have reviewed and revised this Agreement and that
the rule of construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or any
document executed and delivered by either party in connection with this Agreement.
6.11 Modifications. Any alteration, change or modification of or to this
Agreement or the Project Agreements in order to become effective, shall be made in
writing and in each instance signed on behalf of each party. Successor Agency, acting by
and though its Executive Director upon the approval of the General Counsel, may
approve alterations, changes or modifications to this Agreement and the Project
Agreements without further approval of the board of the Successor Agency or Oversight
Board as may be requested by Developer's construction lender or lenders, or as
otherwise agreed to by the Parties, provided such alterations, changes or modifications
do not materially increase or decrease the legal, equitable or financial obligations or rights
of the Successor Agency hereunder, or decrease the amount of the Purchase Price.
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6.12 Severability. If any term, provision, condition or covenant of this Agreement
or its application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term, provision,
condition or covenant to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable
to the fullest extent permitted by law.
6.13 Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day, and including the last day, unless the
last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term m
"holiday" shall mean all holidays as specified in Sections 6700 and 6701 of the California
Government Code. If any act is to be done by a particular time during a day, that time
shall be Pacific Time Zone time. c
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6.14 Legal Advice. Each party represents and warrants to the other the
following: they have carefully read this Agreement, and in signing this Agreement, they
do so with full knowledge of any right which they may have; they have received 00
independent legal advice from their respective legal counsel as to the matters set forth in
this Agreement, or have knowingly chosen not to consult legal counsel as to the matters r
set forth in this Agreement; and, they have freely signed this Agreement without any
reliance upon any agreement, promise, statement or representation by or on behalf of the w
other party, or their respective agents, employees, or attorneys, except as specifically set
forth in this Agreement, and without duress or coercion, whether economic or otherwise. a
6.15 Time of Essence. Time is expressly made of the essence with respect to
the performance by Successor Agency and Developer of each and every obligation and
condition of this Agreement.
6.16 Cooperation. Each party agrees to cooperate with the other in this
transaction and, in that regard, shall execute any and all documents which may be
reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this
Agreement.
6.17 Conflicts of Interest. No Successor Agency member, official or employee of
Successor Agency shall have any personal interest, direct or indirect, in this Agreement,
nor shall any such member, official or employee participate in any decision relating to the
Agreement which affects his personal interests or the interests of any corporation,
partnership or association in which he is directly or indirectly interested.
6.18 Time for Acceptance of Agreement by Successor Agency. This Agreement,
when executed by Developer and delivered to Successor Agency, must be authorized,
executed and delivered by Successor Agency on or before ninety (90) days after signing
and delivery of this Agreement by Developer or this Agreement shall be void, except to
the extent that Developer shall consent in writing to a further extension of time for the
authorization, execution and delivery of this Agreement. Developer hereby
acknowledges that the authorization, execution and delivery of this Agreement by
Successor Agency, requires the approval of the Successor Agency and Oversight Board.
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6.19 Developer's Indemnity. Except for the gross negligence or willful
misconduct of the Successor Agency or Successor Agency Parties (collectively
"Successor Agency Indemnitees"), Developer shall indemnify (with one (1) counsel
reasonably acceptable to the Successor Agency, unless there is a conflict of interest by,
among or between any of the Indemnitees, whether individuals or entities in which case
separate counsel shall be provided by Developer for each such Indemnitee to the extent
such separate counsel is authorized, approved and funded by Developer's insurance
carrier) the Indemnities from and against any and all liabilities, obligations, losses,
damages, deficiencies, fines, penalties, costs and other expenses, including reasonable
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attorneys' fees and court costs, excluding criminal liabilities and workers compensation
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claims attributable to the Indemnitees (collectively, "Developer Liabilities") which result
from the performance of this Agreement by Developer or Developer's ownership,
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development, use, or operation of the Mixed Use Property or any portion thereof,
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excepting those liabilities which are caused by (i) Indemnitees' (or any of them) gross
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negligence or willful misconduct, (ii) any litigation related to the validity of this Agreement
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or Project Approvals, or (iii) Developer's performance of the UST Removal Work which
shall be governed by the terms of a right of entry agreement to be negotiated between
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Successor Agency and Developer. Successor Agency agrees to work with Developer to
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discuss and effectuate settlement of any litigation hereunder where it is in the parties'
best interests to do so. Indemnitees and Developer shall each have the right to request
that any case be handled through an alternative dispute resolution process. The
Successor Agency and Developer agree to fully cooperate with one another in any case
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where no conflict of interest between the parties is apparent. Without limiting the
generality of the foregoing, Developer specifically agrees to indemnify, defend and hold
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harmless the Indemnitees from any Liabilities resulting from Developer's failure to comply
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with Applicable Laws.
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The duty to defend is a separate and distinct obligation from the Developer's duty
to indemnify. The Developer shall be obligated to defend, in all legal, equitable,
administrative, or special proceedings, with one (1) counsel reasonably acceptable to the
Successor Agency, unless there is a conflict of interest by, among or between any of the
Indemnitees, whether individuals or entities in which case separate counsel shall be
provided by Developer for each such Indemnitee, the Indemnitees immediately upon
tender to Developer of the claim in any form or at any stage of an action or proceeding,
whether or not liability is established to the extent such separate counsel is authorized,
approved and funded by Developer's insurance carrier. An allegation or determination of
comparative negligence or willful misconduct by an Indemnitee does not relieve the
Developer from its separate and distinct obligation to defend the Indemnitees. The
obligation to defend extends through final judgment, including exhaustion of any appeals.
The defense obligation includes an obligation to provide independent defense counsel if
Developer asserts that liability is caused in whole or in part by the gross negligence or
willful misconduct of the Indemnitees or any of them to the extent such separate counsel
is authorized, approved and funded by Developer's insurance carrier. If it is finally
adjudicated that liability was caused by the active negligence or willful misconduct of an
Indemnitee, Developer may submit a claim to the Successor Agency for reimbursement
of reasonable attorneys' fees and defense costs. The review, acceptance or approval of
the Project by any Indemnitee shall not affect, relieve or reduce the Developer'
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indemnification or defense obligations. This Section survives completion or the
termination of this Agreement. The provisions of this Section are not limited by and do not
affect the provisions of this Agreement relating to insurance.
6.20 Successor Agency's Indemnity. Except for the gross negligence or willful
misconduct of the Developer or Developer's officers, agents, employees, principals,
owners, managers, representatives, contractors, subcontractors, consultants or
attorneys (collectively "Developer Indemnitees"), Successor Agency shall indemnify
(with one (1) counsel reasonably acceptable to the Developer, unless there is a conflict of
interest by, among or between any of the Developer Indemnitees, whether individuals or m
entities in which case separate counsel shall be provided by Successor Agency for each 15
such Developer Indemnitee to the extent such separate counsel is authorized, approved E
and funded by Successor Agency's insurance carrier) the Developer Indemnities from c
and against any and all liabilities, obligations, losses, damages, deficiencies, fines,
penalties, costs and other expenses, including reasonable attorneys' fees and court w
costs, excluding criminal liabilities and workers compensation claims attributable to the
Developer Indemnitees (collectively, "Successor Agency Liabilities"), which result from 00
the use of all or a portion of the Mixed Use Property for public parking, farmer's market or
other City sponsored events or activities arising prior to Closing. Developer agrees to r
work with Successor Agency to discuss and effectuate settlement of any litigation
hereunder where it is in the parties' best interests to do so. The Successor Agency and
Developer agree to fully cooperate with one another in any case where no conflict of
interest between the parties is apparent. a
The duty to defend is a separate and distinct obligation from the Successor
Agency's duty to indemnify. The Successor Agency shall be obligated to defend, in all
legal, equitable, administrative, or special proceedings, with one (1) counsel reasonably
acceptable to the Developer, unless there is a conflict of interest by, among or between
any of the Developer Indemnitees, whether individuals or entities in which case separate
counsel shall be provided by Successor Agency for each such Developer Indemnitee,
immediately upon tender to Successor Agency of the claim in any form or at any stage of
an action or proceeding, whether or not liability is established to the extent such separate
counsel is authorized, approved and funded by Successor Agency's insurance carrier.
An allegation or determination of comparative negligence or willful misconduct by an
Developer Indemnitee does not relieve the Successor Agency from its separate and
distinct obligation to defend the Developer Indemnitees. The obligation to defend
extends through final judgment, including exhaustion of any appeals. The defense
obligation includes an obligation to provide independent defense counsel if Successor
Agency asserts that liability is caused in whole or in part by the gross negligence or willful
misconduct of the Developer Indemnitees or any of them to the extent such separate
counsel is authorized, approved and funded by Successor Agency's insurance carrier. If
it is finally adjudicated that liability was caused by the active negligence or willful
misconduct of a Developer Indemnitee, Successor Agency may submit a claim to the
Developer for reimbursement of reasonable attorneys' fees and defense costs. The
review, acceptance or approval of the Project by any Indemnitee shall not affect, relieve
or reduce the Successor Agency's indemnification or defense obligations. This Section
survives completion or the termination of this Agreement.
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6.21 Cooperation in the Event of Legal Challenge to Project Approvals. The
Parties may cooperate in the defense of any court action or proceeding instituted by a
third party or other governmental entity or official challenging the validity of any provision
of this Agreement or the Successor Agency's initial approval of this Agreement or any of
the Project Approvals ("Initial Litigation Challenge"), and the Parties shall keep each
other informed of all developments relating to such defense, subject only to confidentiality
requirements that may prevent the communication of such information. The foregoing
notwithstanding, the Successor Agency may choose not to defend any such proceeding
challenging the validity of any provision of this Agreement or the Successor Agency's
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initial approval of this Agreement or any of the Project Approvals.
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6.21.1 Meet and Confer. If an Initial Litigation Challenge is filed, upon
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receipt of the complaint, the Parties will have 20 days to meet and confer regarding the
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merits of such Initial Litigation Challenge and to determine whether to defend against the
Initial Litigation Challenge, which period may be extended by the Parties' mutual
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agreement so long as it does not impact any litigation deadlines. The Successor Agency
and Developer mutually commit to meet all required litigation timelines and deadlines.
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The Parties may enter a joint defense agreement, which will include among other things,
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provisions regarding confidentiality. The Executive Director is authorized to negotiate
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and enter such joint defense agreement in a form acceptable to the General Counsel.
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Such joint defense agreement shall also provide that any proposed settlement of an Initial
Litigation Challenge shall be subject to Successor Agency's and Developer's approval,
each in its reasonable discretion. If the terms of the proposed settlement would constitute
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an amendment or modification of this Agreement, the settlement shall not become
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effective unless such amendment or modification is approved by Developer, and by
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Successor Agency in accordance with Applicable Laws, and Successor Agency reserves
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its full legislative discretion with respect thereto.
6.22 Non -liability of Officials and Employees of Successor Agency. No member,
official or employee of Successor Agency shall be personally liable to Developer, or any
successor in interest, in the event of any Default or breach by Successor Agency or for
any amount which may become due to Developer or its successors, or on any obligations
under the terms of this Agreement. Developer hereby waives and releases any claim it
may have against the members, officials or employees of Successor Agency with respect
to any Default or breach by Successor Agency or for any amount which may become due
to Developer or its successors under the terms of this Agreement.
6.23 Legal Fees. If any Party to this Agreement brings any action or suit against
another Party regarding any matter relating to or arising out of this Agreement, then all
Parties shall bear their own fees, costs and expenses incurred therein, including any and
all attorneys' fees.
6.24 Applicable Law; Venue. The laws of the State of California, without regard
to conflict of laws principles, shall govern the interpretation and enforcement of this
Agreement. The exclusive venue for any disputes or legal actions shall be the Superior
Court of California in and for the County of Los Angeles or the United States District
Court, Central District of California.
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6.25 Survival. The Parties' indemnification obligations under Sections 3.9, 6.8,
6.19 and 6.20 shall survive termination of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written. s
SUCCESSOR AGENCY: m
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SUCCESSOR AGENCY TO THE FORMER REDEVELOPMENT E
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AGENCY OF THE CITY OF SANTA CLARITA, a public entity N
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By:
Kenneth W. Striplin, Executive Director N
APPROVED AS TO FORM:
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Joseph Montes, General Counsel
ATTEST:
Secretary
DEVELOPER:
OLD TOWN-MAIN,LLC, a California limited liability company
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Jeffrey W. Paul, Its Manager
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EXHIBIT A
LEGAL DESCRIPTION - OLD TOWN NEWHALL PROPERTY
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described as
follows:
PARCEL A: APN 2831-007-901 THROUGH 2831-007-907
PARCEL 1:
LOTS 3 TO 12 INCLUSIVE, BLOCK 16, TOWN OF NEWHALL, COUNTY OF LOS ANGELES, STATE
OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 53 PAGES 21 AND 22 OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THE NORTHWESTERLY 10 FEET OF SAID LOT 3.
ALSO EXCEPT A PORTION OF LOTS 11 AND 12, DESCRIBED AS FOLLOWS:
A SPANDREL SHAPED PARCEL OF LAND BOUNDED NORTHEASTERLY BY THE NORTHEASTERLY
LINE OF SAID BLOCK, BOUNDED SOUTHEASTERLY BY THE SOUTHEASTERLY LINE OF SAID
BLOCK, AND BOUNDED WESTERLY BY THE ARC OF A CURVE CONCAVE WESTERLY AND HAVING
A RADIUS OF 29.00 FEET, BEING TANGENT TO SAID NORTHEASTERLY AND SOUTHEASTERLY
LINES OF BLOCK 16, AS GRANTED TO THE CITY OF SANTA CLARITA, A MUNICIPAL
CORPORATION IN DEED RECORDED OCTOBER 17, 1997 AS INSTRUMENT NO. 97-1636116,
OFFICIAL RECORDS.
PARCEL 2
LOTS 15 TO 22 INCLUSIVE, BLOCK 16, TOWN OF NEWHALL, COUNTY OF LOS ANGELES, STATE
OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 53 PAGES 21 AND 22 OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THE NORTHWESTERLY 10 FEET OF LOT 22.
ALSO EXCEPT THEREFROM THE PORTIONS OF SAID LOTS DESCRIBED AS FOLLOWS
BEGINNING AT THE MOST WESTERLY CORNER OF SAID LOT 24; THENCE SOUTH 320 30' 15"
FAST ALONG THE SOUTHWESTERLY LINE OF SAID LOTS, A DISTANCE OF 250 FEET TO THE
MOST SOUTHERLY CORNER OF SAID LOT 15; THENCE NORTH 570 30' 15" EAST ALONG THE
SOUTHEASTERLY LINE OF SAID LOT 15, A DISTANCE OF 20.00 FEET; THENCE NORTH 320 30'
15" WEST, PARALLEL WITH SAID SOUTHWESTERLY LINE OF SAID LOTS, A DISTANCE OF
125.08 FEET; THENCE NORTHWESTERLY ALONG A TANGENT CURVE TO THE RIGHT, HAVING A
RADIUS OF 360 FEET, THROUGH AN ANGLE OF 200 18' 17" A DISTANCE OF 127.58 FEET TO A
POINT IN THE NORTHWESTERLY LINE OF SAID LOT 24; THENCE SOUTH 570 29' WEST
THEREON, A DISTANCE OF 42.37 FEET TO THE POINT OF BEGINNING.
PARCEL 3:
THAT CERTAIN ALLEY IN BLOCK 16, IN THE TOWN OF NEWHALL, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 53 PAGES 21 AND 22 OF
MISCELLANEOUS RECORDS, ADJOINING SAID PARCEL 1 HEREOF ON THE SOUTHWEST AND
ADJOINING SAID PARCEL 2 HEREOF ON THE NORTHEAST AS VACATED BY ORDER OF BOARD
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OF SUPERVISORS MAY 14, 1946. A CERTIFIED COPY OF SAID ORDER WAS RECORDED MAY 20,
1946 IN BOOK 23158 PAGE 382, OFFICIAL RECORDS.
EXCEPTING THEREFROM THAT PORTION OF SAID ALLEY ADJOINING LOTS 11 AND 12 ON THE
SOUTHWEST.
EXCEPT FROM PARCEL 1, PARCEL 2 AND PARCEL 3 HEREOF, ALL MINERALS, OIL, GAS AND
OTHER HYDROCARBON SUBSTANCES IN AND UNDER OR THAT MAY BE PRODUCED FROM A
DEPTH BELOW 500 FEET FROM THE SURFACE OR THE ABOVE DESCRIBED LAND, WITHOUT
RIGHT OF ENTRY UPON THE SURFACE OF THE ABOVE DESCRIBED REAL PROPERTY FOR THE
PURPOSE OF MINING, DRILLING OR EXTRACTING SUCH MINERALS, OIL, GAS AND OTHER
HYDROCARBON SUBSTANCES OF SAID LAND TO A DEPTH OF 500 FEET BELOW THE SURFACE
HEREOF, AS GRANTED TO HAMMOND-CALIFORNIA REDWOOD CO, A CORPORATION
RECORDED APRIL 18, 1958 IN BOOK D-76 PAGE 749, OFFICIAL RECORDS.
PARCEL 1
LOTS 13 AND 14 IN BLOCK 16, TOWN OF NEWHALL, IN THE CITY OF SANTA CLARITA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 53 PAGES 21 AND
22 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
PARCEL 2:
ALL THAT PORTION OF THE 20 FOOT ALLEY, AS VACATED IN SAID BLOCK 16, TOWN OF
NEWHALL, IN THE CITY OF SANTA CLARITA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
ADJOINING ABOVE PARCEL 1 ON THE NORTHEAST.
PARCEL 3
LOTS 23 AND 24 AND THE NORTHWESTERLY 10 FEET OF LOT 22 IN BLOCK 16, TOWN OF
NEWHALL, IN THE CITY OF SANTA CLARITA COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 53 PAGES 21 AND 22 OF MISCELLANEOUS RECORDS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAD COUNTY.
ALSO THE SOUTHWEST 30 FEET OF THE ALLEY VACATED ADJOINING SAID LOTS ON THE
NORTHEAST.
EXCEPT THEREFROM THAT PORTION OF SAID PROPERTY INCLUDED WITHIN THE STATE
HIGHWAY AS DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED IN BOOK 13340
PAGE 180, OFFICIAL RECORDS OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION OF SAID LOT 24, WITHIN THE FOLLOWING
DESCRIBED BOUNDARIES:
BEGINNING AT THE MOST NORTHERLY CORNER OF THAT CERTAIN PARCEL OF LAND
DESCRIBED IN DEED TO THE STATE OF CALIFORNIA FOR A PUBLIC HIGHWAY, RECORDED ON
APRIL 27, 1935 IN BOOK 13340 PAGE 180, OFFICIAL RECORDS, IN THE OFFICE OF SAID
RECORDER; THENCE NORTHEASTERLY ALONG THE NORTHEASTERLY PROLONGATION OF THE
NORTHWESTERLY LINE OF SAID CERTAIN PARCEL OF LAND, A DISTANCE OF 6.50 FEET;
THENCE SOUTHERLY IN A DIRECT LINE 13.63 FEET TO A POINT IN THE EASTERLY BOUNDARY
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OF SAID CERTAIN PARCEL OF LAND DISTANT SOUTHERLY THEREON 10 FEET FROM THE POINT
OF BEGINNING; THENCE NORTHERLY ALONG SAID EASTERLY BOUNDARY 30 FEET TO SAID
POINT OF BEGINNING.
PARCEL 4:
LOTS 11 2 AND THE NORTHWESTERLY 10 FEET OF LOT 3 IN BLOCK 16, TOWN OF NEWHALL, IN
THE CITY OF SANTA CLARITA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 53 PAGES 21 AND 22 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
ALSO THE NORTHEAST 10 FEET OF THE ALLEY VACATED ADJOINING SAID LOTS ON THE
SOUTHWEST.
EXCEPT THEREFROM THAT PORTION OF SAID LOT 1, WITHIN THE FOLLOWING DESCRIBED
BOUNDARIES:
BEGINNING AT THE MOST NORTHERLY CORNER OF SAID LOT; THENCE SOUTHEASTERLY
ALONG THE NORTHEASTERLY LINE OF SAID LOT, A DISTANCE OF 17 FEET; THENCE WESTERLY
IN A DIRECT LINE 24.04 FEET TO A POINT IN THE NORTHWESTERLY LINE OF SAID LOT,
DISTANT SOUTHWESTERLY THEREON 17 FEET FROM THE POINT OF BEGINNING; THENCE
NORTHEASTERLY ALONG SAID NORTHWESTERLY LINE 17 FEET TO SAID POINT OF
BEGINNING.
OAK 839-00505992 v8
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EXHIBIT C
RECORDING REQUESTED BY AND
AFTER RECORDATION MAIL TO:
Serrano Development Group, Inc.
500 North Brand Boulevard, Suite 2120
Glendale, CA 91203
Attention: Jason Tolleson, Principal
This document is exempt from the payment
of a recording fee pursuant to Government
Code §§ 6103, 27383
(Space Above This Line for Recorder's Use Only)
GRANT DEED
(With Covenants)
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Successor Agency to the former Redevelopment Agency of the City of
Santa Clarita, a public entity ("Grantor"), hereby grants to Old Town -Main, LLC, a
California limited liability company ("Grantee"), the real property (the "Property") located
in the City of Santa Clarita, County of Los Angeles, California, and more particularly
described in Attachment No. 1 attached hereto and incorporated in this grant deed
("Grant Deed") by reference.
1. Grantee expressly covenants and agrees for itself, its successors and
assigns and all persons claiming under or through it, that as to the Property and any
improvements constructed or to be constructed thereon, or any part thereof, or alterations
or changes thereto, Grantee and all such successors and assigns and all persons
claiming under or through it, shall own, transfer, use, devote, operate and maintain the
Property and the improvements thereon, and every part thereof, to the uses specified and
in accordance with and subject to the terms of that certain Purchase and Sale Agreement
between Grantor and Grantee dated as of , 201 ("PSA"), and the
agreements and covenants set forth in this Grant Deed. Capitalized terms used but not
otherwise defined herein shall have the meanings provided in the PSA.
2. The Grantee covenants by and for itself and any successors in interest that
there shall be no discrimination against or segregation of any person or group of persons
on account of race, color, creed, religion, sex, marital status, national origin or ancestry in
the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property,
nor shall the Grantee itself or any person claiming under or through it establish or permit
any such practice or practices of discrimination or segregation with reference to the
OAK #4839-0050-9992 v8 EXHIBIT C-1
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selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the Property.
All deeds, leases or contracts made relative to the Property, the improvements
thereon or any part thereof, shall contain or be subject to substantially the following
nondiscrimination clauses:
(a) In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming
under or through them, that there shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure
or enjoyment of the land herein conveyed, nor shall the grantee himself or herself, or any
person claiming under or through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the
land herein conveyed. The foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons claiming
under or through him or her, and this lease is made and accepted upon and subject to the
following conditions:
That there shall be no discrimination against or segregation of any person or group
of persons on account of race, color, creed, religion, sex, marital status, national
origin or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure
or enjoyment of the premises herein leased, nor shall the lessee himself or herself,
or any person claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessess or vendees in the premises herein leased."
(c) In contracts: "There shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion,
sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land, nor shall the transferee himself or herself, or
any person claiming under or through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the
land."
The covenants against discrimination contained in this paragraph shall remain in
perpetuity.
3. It is intended and agreed that the covenants and agreements set
forth in this Grant Deed shall be covenants running with the land and that they shall be, in
any event and without regard to technical classification or designation, legal or otherwise,
OAK #4839-0050-9992 v8 EXHIBIT C-2
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to the fullest extent permitted by law and equity, (i) binding for the benefit and in favor of
Grantor, its successors and assigns, as beneficiary for the entire period during which
such covenants shall be in force and effect, without regard to whether the Grantor is or
remains an owner of any land or interest therein to which such covenants relate; and (ii)
binding against Grantee, its successors and assigns to or of the Property and any
improvements thereon or any part thereof or any interest therein, and any party in
possession or occupancy of the Property or the improvements thereon or any part
thereof. The agreements and covenants herein shall be binding on Grantee itself, each
successor in interest or assign, and each party in possession or occupancy, respectively,
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only for such period as it shall have title to or an interest in or possession or occupancy of
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the Property or part thereof. The Grantor and such aforementioned parties, in the event
of any breach of any such covenants, shall have the right to exercise all of the rights and
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remedies, and to maintain any actions at law or suits in equity or other proper proceedings
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to enforce the curing of such breach. The covenants contained in this Grant Deed shall
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be for the benefit of and shall be enforceable only by the Grantor, its successors and
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assigns and such aforementioned parties.
4. No violation or breach of the covenants, conditions, restrictions, provisions
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or limitations contained in this Grant Deed or the PSA shall defeat or render invalid or in
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any way impair the lien or charge of any mortgage, deed of trust or other financing or
security instrument encumbering the Property as permitted by the PSA; provided,
however, that any successor of Grantee to the Property shall be bound by such
covenants, conditions, restrictions, limitations and provisions, whether such successor's
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title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
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5. Grantee hereby grants to Grantor the option to repurchase the Property
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hereby conveyed by Grantor and all improvements subsequently constructed thereon
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upon the terms and provisions more fully set forth in Section 5.4 of the PSA, which
provisions are incorporated herein by this reference thereto. Anything herein to the
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contrary notwithstanding, the Grantor's rights and interests under Section 5.4 of the PSA,
and the Grantee's obligations under Section 5.4 of the PSA, shall terminate as to the
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Property upon Final Completion of the Project as provided in the PSA. Upon Final
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Completion of the Project as provided in the PSA, the Grantor hereby quitclaims all rights
and interests in the Property and the Grantor shall have no further right to enforce any
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rights under Section 5.4 of the PSA with respect to the Property. Accordingly, upon Final
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Completion of the Project as provided in the PSA, Grantor shall execute, acknowledge
and cause to be recorded a Quitclaim Deed -Final Completion, in the form set forth in
Exhibit F-1 to the PSA, evidencing the foregoing termination and quitclaim.
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6. By its execution of this Grant Deed, Grantee has acknowledged and
accepted the provisions hereof.
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7. In the event of any express conflict between this Grant Deed and the PSA,
then the provisions of this Grant Deed shall control.
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8. This Grant Deed may be executed in counterparts, each of which shall be
deemed an original and all of which taken together shall constitute one and the same
instrument.
SIGNATURES ON FOLLOWING PAGE.
GRANTOR:
Successor Agency to the former
Redevelopment Agency of the City of Santa c
Clarita, a public entity 00
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Date: 201_ By: 'w
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Kenneth W. Striplin, Executive
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ATTEST:
Secretary
APPROVED AS TO FORM:
Joseph Montes, General Counsel
[SIGNATURE MUST BE NOTARIZED]
GRANTEE:
OLD TOWN -MAIN, LLC, a California limited
liability company
Date: , 201 By:
OAK #4839-0050-9992 v8
EXHIBIT C-4
Jeffrey W. Paul, Its Manager
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ACKNOWLEDGMENTS
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF )
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On 201_ before me, m
Notary Public, personally appeared
who proved to me on the a
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the ,—°,
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
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the instrument. N
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
(seal)
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On 201_ before me,
Notary Public, personally appeared
, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
OAK #4839-0050-9992 v8 Acknowledgment
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I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
OAK #4839-0050-9992 v8 Acknowledgment
(seal)
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On 201_ before me,
Notary Public, personally appeared
, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
OAK #4839-0050-9992 v8
Acknowledgment
(seal)
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ATTACHMENT NO. 1
LEGAL DESCRIPTION
For APN/Parcel ID(s):
3.d
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA
CLARITA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AND IS DESCRIBED
AS FOLLOWS: s
OAK #4839-0050-9992 v8 EXHIBIT C- ATTACHMENT 1
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EXHIBIT D
SCHEDULE OF PERFORMANCE
NOTE: Capitalized terms used below shall have the meaning ascribed to such terms in
the Purchase and Sale Agreement ("Agreement") to which this Exhibit D is attached. All
of the dates and deadlines described below shall be subject to extension by the Executive
Director pursuant to Section 3.1 of the Agreement or "Force Majeure Delays" or "Agreed
Extension of Performance" in accordance with Section 6.2 of the Agreement.
Additionally, the Outside Date for Closing shall be extended due to an Environmental °
Force Majeure Delay in accordance with Section 6.2 of the Agreement. The provisions of 00
the Schedule of Performance are intended as a convenient guideline for the Parties and
are not intended to supersede or amend the referenced operative sections listed below. c
To the extent the operative sections of the Agreement require performance "within the
times set forth in the Schedule of Performance", then the dates and deadlines set forth in
this Schedule of Performance shall control. In the event of any conflict between this
Schedule of Performance and the Agreement, the Agreement shall control.
PERFORMANCE ITEM
DATE
I.
EXECUTION OF PSA
A.
Developer submits Organizational
Prior to execution of
Documents to Successor Agency. [Section
Agreement.
1.2.2(a)]
B.
Successor Agency considers Agreement
Within 14 days of Developer's
and, if approved, forwards recommendation
delivery to the Successor
to the Oversight Board.
Agency of acceptable
Agreement, approved as to
form by General Counsel.
C.
Oversight Board considers approval of
Within 30 days of Successor
Agreement.
Agency recommendation.
D.
If approved by Oversight Board, Developer
Within 7 days of Oversight
executes Agreement.
Board approval.
E.
If approved by Oversight Board, Successor
Within 7 days of Oversight
Agency executes Agreement.
Board approval.
II.
DEVELOPER SITE INSPECTION/DUE
DILIGENCE PERIOD
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PERFORMANCE ITEM
DATE
A.
Developer and Successor Agency execute
Within 270 days of Date of
right of entry agreement for UST Removal
Agreement.
Work. [Section 2.14]
B.
Developer commences UST Removal
Within 90 days following
Construction. [Section 2.14]
approval of Project Approvals.
C.
Developer completes UST Removal
Within 120 days following
Construction. [Section 2.14]
commencement of UST
Removal Construction.
D.
Developer completes UST Removal
No later than 60 days prior to
Regulatory Approval. [Section 2.14]
Outside Date for Close of
Escrow.
E.
Developer completes independent
Within 15 days after completion
investigation and provides written notice to
of UST Removal Work.
Successor Agency approving or
disapproving Site Condition. [Section 2.14]
F.
If Site Condition disapproved, Successor
Within 30 days following
Agency elects to either remedy disapproved
Developer's notice
Site Condition or do nothing. [Section 2.14]
disapproving Site Condition.
G.
If Successor Agency does not elect to
Within 15 days after expiration
remedy disapproved Site Condition,
of Successor Agency's 30 day
Developer elects to either proceed with
period to decide whether to
purchase of Mixed Use Property and Close
remedy disapproved Site
of Escrow or terminates Agreement.
Condition or do nothing.
[Section 2.14]
III.
FINANCING
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PERFORMANCE ITEM
DATE
A.
Developer submits evidence of property
(1) 30 calendar days following
acquisition and construction equity and debt
Date of Agreement
financing ("Sources and Uses"). [Section
3.7]
(2) 30 calendar days following
approval of Project Approvals
(3) 30 calendar days following
Developer's receipt of a
commitment letter from its
construction lender
(4) no less than 5 calendar
days following Developer's
receipt of final loan documents
B.
Successor Agency approves Sources and
Within 30 days of Developer
Uses. [Section 3.7]
submittal of Sources and Uses
based on the milestones listed
above.
IV.
ESCROW / REVIEW OF TITLE
A.
Successor Agency and Developer open
Within 3 calendar days
Escrow and Developer deposits into Escrow
following the Date of
the Developer Deposit. [Sections 2.2 and
Agreement.
2.6]
B.
Successor Agency delivers to Developer a
Within 30 days following the
Title Report and all documents underlying
approval of the Certificate of
the Exceptions set forth in the Title Report
Compliance for the Mixed Use
for the Mixed Use Property. [Section 2.9]
Property.
C.
Developer approves or disapproves Title
Within 30 days following
Report or Exceptions. [Section 2.9]
Successor Agency's delivery of
Title Report and all Exceptions
to Developer.
D.
Successor Agency removes disapproved
Within 30 days following
Exceptions, provides assurances
Successor Agency's receipt of
satisfactory to Developer that they will be
Developer's notice of
removed, or indicates Exceptions will not be
disapproval.
removed. [Section 2.9]
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PERFORMANCE ITEM
DATE
E.
Developer notifies Successor Agency of
Within 15 days following
acceptance of Exceptions or intention to
Successor Agency's
terminate Agreement. [Section 2.9]
notification that Exceptions will
not be removed.
V.
CONDITIONS PRECEDENT TO CLOSING
A.
Oversight Board approves Agreement.
Prior to Outside Date for
[Section 2.3]
Closing.
B.
Successor Agency and Developer shall
Prior to Outside Date for
have executed, acknowledged and
Closing.
delivered into Escrow the Grant Deed and
Assignment and Assumption Agreement,
and all other documents required pursuant
to Sections 2.8.1 and 2.8.2. [Sections 2.4.2
and 2.5.2]
C.
Developer and City shall have executed,
Prior to Outside Date for
acknowledged and delivered into Escrow a
Closing.
document conveying the Ramp Easement.
[Sections 2.4.12 and 2.5.3]
D.
Developer shall have delivered the
Prior to Outside Date for
Purchase Price, less the Developer Deposit,
Closing.
and all other closing costs to Escrow.
[Section 2.4.3]
E.
Successor Agency shall have approved
Prior to Outside Date for
Developer's Sources and Uses pursuant to
Closing.
Section 3.7 [Section 2.4.4]; Developer shall
have secured and provided evidence of
ready and available funds [Sections 2.4.5
and 2.5.7]; and Developer's construction
loan shall have closed or be ready to close
[Sections 2.4.6 and 2.5.7].
F.
Developer shall have secured the Project
Prior to Outside Date for
Approvals, which shall be final and
Closing.
non -appealable and approved by Developer
[Sections 2.4.8 and 2.5.4], and all
demolition, grading and building permits
shall be ready to be issued by City [Sections
2.4.7 and 2.5.5].
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PERFORMANCE ITEM
DATE
G.
Developer shall have accepted or waived all
Prior to Outside Date for
disapproved Exceptions and approved the
Closing.
Condition of Title pursuant to Section 2.9.
[Section 2.5.6]
H.
Developer shall have completed the UST
Prior to Outside Date for
Removal Work and accepted or waived the
Closing.
Site Condition pursuant to Section 2.14.
[Sections 2.4.11 and 2.5.11 ]
I.
Developer shall have provided to Successor
Prior to Outside Date for
Agency the insurance policies required by
Closing.
Section 3.8. [Section 2.4.9]
J.
Neither Developer nor Successor Agency
Prior to Outside Date for
shall be in default under the Agreement.
Closing.
[Sections 2.4.1 and 2.5.1 ]
K.
There shall be an absence of any pending
Prior to Outside Date for
governmental, administrative or legal
Closing.
proceeding which would materially and
adversely affect Developer's intended uses
of the Mixed Use Property, development of
the Project, or value of the Mixed Use
Property. [Section 2.5.8]
L.
There shall have been no material adverse
Prior to Outside Date for
change to the physical, environmental or
Closing.
title condition of the Mixed Use Property.
[Section 2.5.9]
M.
Successor Agency shall have demonstrated
Prior to Outside Date for
to Developer the ability to deliver fee title to
Closing.
Mixed Use Property free of any parties in
possession. [Section 2.5.10]
N.
Close of Escrow for conveyance of Mixed
Within 30 days after the
Use Property from Successor Agency to
satisfaction or waiver by the
Developer. [Section 2.7]
appropriate party, of the Joint
Condition Precedent,
Successor Agency Conditions
Precedent and Developer
Conditions Precedent.
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PERFORMANCE ITEM
DATE
O.
Outside Date for Closing. [Section 2.7]
March 31, 2018.
VI.
ENTITLEMENT PROCESS
Land Use Approvals/Design Review
A.
Developer submits administrative draft
Within 300 days of the Date of
Design Review packet to City. [Section 3.3]
Agreement.
B.
City provides comments to Developer on
Within 30 days following City's
administrative draft Design Review packet
receipt of administrative draft
(DRC).
Design Review packet.
C.
Developer submits Final Design Review
Within 30 days following
packet to City.
receipt of City comments on
administrative draft Design
Review packet.
D.
City determines if Final Design Review
Within 21 days following City's
packet is complete.
receipt of Final Design Review
packet.
F.
City publishes Public Noticing for Planning
21 days prior to the next
Commission Meeting.
available Planning
Commission meeting date
following City's determination
that Final Design Review
packet is complete. The
Planning Commission meets
once a month and does not
meet in August.
G
Planning Commission meets, considers and
Within 30 days of the date of
takes action on Final Design Review
the publication of the public
application.
hearing notice.
Subdivision
A.
Developer submits Tentative Tract Map for
Concurrent with the Land Use
approval.
Approvals/Design Review
application submittal.
B.
City considers Tentative Tract Map.
Within 90 days following
submission by Developer.
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PERFORMANCE ITEM
DATE
C.
Planning Commission Review.
Concurrent with land use
approvals/design review.
D
Developer submits Final Tract Map for
No later than Substantial
approval.
Completion of the Project.
E.
City considers Final Tract Map.
Within 30 days following
submission by Developer.
Certificate of Compliance
A.
Developer prepares plat map and legal
Concurrent with land use
description of property.
approval/design review.
B.
City considers Certificate of Compliance.
Concurrent with land use
approval/design review.
Grading/Earthwork
A.
Developer submits application and plans for
Within 90 days following
grading/earthwork permits. [Section 2.4.7,
approval of Land Use
3.1 and 3.4]
Entitlement/Design Review.
B.
City plan checks grading/earthwork plans
Within 45 days following
and submits correction comments to
Developer submission of
Developer.
grading application and plans
for grading permits.
C.
Developer corrects grading/earthwork plans
Within 30 days following City
and resubmits for approval.
submission of plan check
corrections.
D.
City rechecks grading/earthwork plans and
Within 45 days following
issues permit or identifies corrections
Developer submission of
necessary to obtain a permit.
corrected grading plans.
E.
If permit is not issued, Developer makes
Within 14 days following City's
corrections necessary for grading/earthwork
identification of corrections
plan approval and resubmits for permit.
necessary to obtain a permit.
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PERFORMANCE ITEM
DATE
F.
City issues grading/earthwork permit or
Within 30 days following
Successor Agency issues notice of default
Developer submission of
to Developer.
corrected grading plans or
Close of Escrow, whichever is
later.
Construction Permits
A.
Developer shall submit application and plan
Within 120 days following
submissions for all building permits ("Plan
approval of Land Use
Submission"). [Section 2.4.8, 3.1 and 3.4]
Approvals/Design Review.
B.
City plan checks building plans of Plan
Within 45 days of receipt of
Submission and submits correction
Plan Submission.
comments to Developer.
C.
Developer makes all building plan
Within 45 days following
corrections and resubmits for comment.
receipt of City's plan check
corrections.
D.
City rechecks building plans and submits
Within 30 days following
correction comments to Developer.
receipt of Developer's
resubmission.
E.
Developer makes all building plan
Within 30 days following
corrections necessary for building plan
receipt of City's plan check
approval and resubmits for permit.
corrections.
F.
City issues building permit or identifies all
Within 15 days following
outstanding correction items necessary to
receipt of Developer's
obtain a building permit.
resubmission.
G.
Developer makes all building plan
Within 15 days following
corrections necessary to obtain building
receipt of City's plan check
plan approval and resubmits for permit.
corrections.
H.
City issues building permit or Successor
Within 15 days following
Agency issues notice of default to
receipt of Developer's
Developer.
resubmission, or Close of
Escrow, whichever is later.
X.
CONSTRUCTION
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PERFORMANCE ITEM
DATE
A.
Developer commences grading/earthwork.
Within 30 days following Close
of Escrow.
B.
Developer commences construction of the
Within 45 days following the
Project. [Sections 3.1 and 3.5]
later of issuance of building
permits or completion of
grading/earthwork.
C.
Developer completes Project construction
Within 20 months following
(excludes tenant improvements for the
commencement of
retail/restaurant/commercial components).
construction.
Recordation of Quitclaim Deed
A.
City shall record Quitclaim Deed. [Sections
Within 30 calendar days
3.1 and 5.4]
following Final Completion of
the Project.
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EXHIBIT E
ASSIGNMENT AND ASSUMPTION AGREEMENT
RECORDING REQUESTED BY
WHEN RECORDED MAIL TO:
City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: City Manager
This document is exempt from the payment of a
recording fee pursuant to Government Code
§§ 6103, 27383
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is entered
into as of the day of 201, by and among the Successor Agency to the
former Redevelopment Agency of the City of Santa Clarita, a public entity ("Assignor"),
the City of Santa Clarita, a California municipal corporation ("Assignee"), and Old
Town -Main, LLC, a California limited liability company ("Developer").
RECITALS
A. Assignor, acting to carry out its obligations under the Community
Redevelopment Dissolution Law of the State of California (Health and Safety Code
§§ 34161 et seq.), and the terms of the Long Range Property Management Plan
("LRPMP") prepared by the Assignor dated December 17, 2013, and approved by the
Oversight Board to the Successor Agency of the Redevelopment Agency of the City of
Santa Clarita ("Oversight Board"), on December 17, 2013, pursuant to Resolution No.
13-06, and the State of California, Department of Finance ("Department"), by letter dated
June 27, 2014, Assignor has entered into that certain Purchase and Sale Agreement
dated , 2016, with Developer ("PSA") with respect to the Site.
B. The PSA provides, among other things, for (1) Assignor's sale of the Site to
Developer at fair market value, and (2) Developer's redevelopment of the Site with a
mixed use development encompassing three to four stories of residential units above
approximately 20,000 square feet of ground floor retail and restaurant use, with
approximately 85 subterranean residential parking spaces beneath the ground floor
retail/restaurant space ("Project").
C. Developer is the fee owner of the real property subject to the PSA more
particularly described in Exhibit 1 attached hereto and incorporated herein ("Site"),
pursuant to the terms of that certain Grant Deed dated , 201, between
Assignor, as Grantor, and Developer, as Grantee, recorded in the Official Records of Los
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Angeles County on 201, as Instrument No.
("Deed").
D. As more particularly set forth in the Deed, Assignor retained the option to
repurchase, reenter and repossess the Site in the event (i) Developer failed to timely
commence construction of the Project improvements on the Site, (ii) once construction
has been commenced, Developer abandoned or substantially suspended construction of
the Project improvements on the Site, or (iii) Developer, without the prior written consent
of Assignor, transferred the Site prior to issuance of a Certificate of Occupancy by City as
defined in the PSA. a
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E. Assignor desires to assign to Assignee and Assignee desires to assume all E
rights and obligations of Assignor under the Deed. Upon execution of this Agreement and c
transfer to Assignee, Assignor desires to be released from any and all obligations under Z
the Deed.
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AGREEMENT 0;
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NOW, THEREFORE, Assignor, Assignee and Developer hereby agree as follows:
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1. Assignment by Assignor. Assignor hereby assigns, transfers and grants to E
Assignee, and its successors and assigns, all of Assignor's rights, title and interest and w
obligations, duties, responsibilities, conditions and restrictions under the Deed whether a
accruing on or after the Effective Date (defined in Section 16 below) (collectively, "Rights R
and Obligations"). N
2. Acceptance and Assumption by Assignee. Assignee, for itself and its
successors and assigns, hereby accepts such assignment and assumes all such Rights
and Obligations. Assignee agrees, expressly for the benefit of Developer, to comply with,
perform and execute all of the covenants and obligations of Assignee arising from or
under the Deed.
3. Release of Assignor. Assignee and Developer hereby fully release a
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Assignor from all Rights and Obligations. Assignor, Assignee and Developer hereby
acknowledge that this Agreement is intended to fully assign all of Assignor's Rights and w
Obligations to Assignee, and it is expressly understood that Assignor shall not retain any X
Rights and Obligations whatsoever.
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4. Substitution of Assignor. Assignee hereafter shall be substituted for and E
replace Assignor in the Deed. Whenever the term "Grantor" appears in the Deed it shall
hereafter mean Assignee.
5. Assignor and Assignee Agreements and Waivers.
a. Assignee represents and warrants to Developer as follows:
i. Authority. Assignee is a California municipal corporation, duly
organized under the laws of the State of California. Assignee has full right, power and
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lawful authority to perform its obligations hereunder and the execution, performance and
delivery of this Agreement by Assignee has been fully authorized by all requisite actions.
ii. No Conflict. Assignee's execution, delivery and performance
of its obligations under this Agreement will not constitute a default or a breach under any
contract, agreement or order to which Assignee is a party or by which it is bound.
iii. No Assignee Bankruptcy. Assignee is not the subject of any
voluntary or involuntary bankruptcy proceeding, and there has been no general
assignment or general arrangement for the benefit of any of Assignee's creditors, and no °
trustee or receiver has been appointed to take possession of substantially all of the m
assets of Assignee.
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iv. Litigation. To the best of Assignee's knowledge, there are no Z
actions, suits, material claims, legal proceedings, or any other proceedings affecting the
Site or any portion thereof, at law or in equity before any court or governmental agency,
domestic or foreign. 0;
V. No Assignee Member Financial Interest. No member, official
or employee of Assignee has any personal interest, direct or indirect, in this Agreement,
the Site, the improvements thereon, or in any other development project or business
venture involving Developer.
b. Developer hereby acknowledges and agrees that Assignor and
Assignee have not made, and will not make, any representation or warranty that the
assignment and assumption of the Deed provided for hereunder will have any particular
tax implications for Developer.
C. Assignor and Developer acknowledge and agree that the Rights and
Obligations have been fully assigned to Assignee by this Agreement and, accordingly,
that Assignee shall have the exclusive right to assert any claims against Developer with
respect to such Rights and Obligations. Accordingly, without limiting any claims of
Assignee under the Deed, Assignor hereby waives and releases any and all claims or
potential claims by Assignor against Developer to the extent arising directly or indirectly
out of the Deed.
6. Release of Rights and Obligations. Anything herein to the contrary
notwithstanding, the Assignee's rights and interests under Section 5.4 of the PSA and the
Deed, and the Developer's obligations under Section 5.4 of the PSA and the Deed, shall
terminate as to the Site upon Final Completion of the Project as provided in the PSA.
Upon Final Completion of the Project as provided in the PSA, the Assignee hereby
quitclaims all rights and interests in the Site and the Assignee shall have no further right to
enforce any rights under Section 5.4 of the PSA and the Deed with respect to the Site.
Accordingly, upon Final Completion of the Project as provided in the PSA, Assignee shall
execute, acknowledge and cause to be recorded a Quitclaim Deed -Final Completion, in
the form set forth in Exhibit F-1 to the PSA, evidencing the foregoing termination and
quitclaim.
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7. PSA, Deed, in Full Force and Effect. Except as specifically provided herein
with respect to the assignment, all the terms, covenants, conditions and provisions of the
PSA and the Deed are hereby ratified and shall remain in full force and effect.
8. Recording. Assignor shall cause this Agreement to be recorded in the
Official Records of Los Angeles County, California, and shall promptly provide conformed
copies of the recorded Agreement to Assignee and Developer.
9. Successors and Assigns. Subject to the restrictions on transfer set forth in
the Deed, all of the terms, covenants, conditions and provisions of this Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their respective
heirs, successors and assigns.
10. Assignee Address for Notices.
The address of Assignee for the purpose of notices, demands and
communications shall be:
City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Kenneth W. Striplin, City Manager
With a copy to: City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Joseph Montes, City Attorney
11. Applicable Law/Venue. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, without reference to choice of law
provisions. Any legal actions under this Agreement shall be brought only in the Superior
Court of the County of Los Angeles, State of California.
12. Interpretation. All parties have been represented by counsel in the
preparation and negotiation of this Agreement and this Agreement shall be construed
according to the fair meaning of its language. The rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed in
interpreting this Agreement. Unless the context clearly requires otherwise: (a) the plural
and singular numbers shall each be deemed to include the other; (b) the masculine,
feminine, and neuter genders shall each be deemed to include the others; (c) "shall,"
"will," or "agrees" are mandatory, and "may" is permissive; (d) "or" is not exclusive; and
(e) "includes" and "including" are not limiting.
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13. Headings. Section headings in this Agreement are for convenience only
and are not intended to be used in interpreting or construing the terms, covenants or
conditions of this Agreement.
14. Severability. Except as otherwise provided herein, if any provision(s) of this
Agreement is (are) held invalid, the remainder of this Agreement shall not be affected,
except as necessarily required by the invalid provisions, and shall remain in full force and
effect unless amended or modified by mutual consent of the parties.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but all of which,
when taken together, shall constitute one and the same instrument, with the same effect
as if all of the parties to this Agreement had executed the same counterpart.
16. Effective Date. The Effective Date of this Agreement shall be the date upon
which it is recorded in the Official Records of the Los Angeles County Recorder
("Effective Date").
IN WITNESS WHEREOF, Assignor, Assignee and Developer have entered into
this Agreement as of the date first above written.
OAK #4839-0050-9992 v8
[Signatures follow on separate pages]
Exhibit E-5
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ASSIGNOR:
Successor Agency to the former
Redevelopment Agency of the City of Santa
Clarita, a public entity
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Date: 201_ By:
E
Kenneth W. Striplin, Executive o
Director w
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[SIGNATURE MUST BE NOTARIZED]
00
ATTEST: Lo
Secretary
APPROVED AS TO FORM:
Joseph Montes, General Counsel
Date: , 201
ATTEST:
OAK #4839-0050-9992 v8
ASSIGNEE:
City of Santa Clarita, a California municipal
corporation
0
Kenneth W. Striplin, City Manager
[SIGNATURE MUST BE NOTARIZED]
Exhibit E-6
Packet Pg. 122
City Clerk
APPROVED AS TO FORM:
Joseph Montes, City Attorney
Date: 201_
OAK #4839-0050-9992 v8
DEVELOPER:
OLD TOWN -MAIN, LLC, a California limited
liability company
0
Jeffrey W. Paul, Its Manager
[SIGNATURES MUST BE NOTARIZED]
Exhibit E-7
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Exhibit 1
Site Legal Description
For APN/Parcel ID(s):
3.d
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA
CLARITA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AND IS DESCRIBED
AS FOLLOWS: s
OAK #4839-0050-9992 v8 Exhibit E - Exhibit 1
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EXHIBIT F-1
Recording requested by, and when
recorded return to:
Serrano Development Group, Inc.
500 North Brand Boulevard, Suite 2120
Glendale, CA 91203
Attention: Jason Tolleson
0
EXEMPT FROM RECORDING FEES PER I m
GOVERNMENT CODE §§6103,27383 I c
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Space Above This Line For Recorder's Use 0-
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QUITCLAIM DEED 'w
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(Final Completion) 00
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For good and valuable consideration, the receipt of which is hereby
acknowledged, the City of Santa Clarita, a municipal corporation ("Grantor"), successor
by assignment to the Successor Agency to the former Redevelopment Agency of the City
of Santa Clarita, a public entity ("Successor Agency"), pursuant to the terms of that
certain Assignment and Assumption Agreement between Grantor and Successor Agency
dated , 201, and recorded , 201, as Instrument No.
Official Records of County of Los Angeles, California, hereby quitclaims to Old
Town -Main, LLC, a California limited liability company ("Grantee"), all of Grantor's right,
title, and interest in and to the real property located in the City of Santa Clarita, County of
Los Angeles, California, and more particularly described in Attachment No. 1 attached
hereto and incorporated in this Quitclaim Deed by reference ("Property"). This Quitclaim
Deed is being recorded to extinguish and terminate that certain option to repurchase the
Property in favor of the Grantor, as set forth in the Grant Deed dated , 201,
and recorded , 201, as Instrument No. Official Records of
County of Los Angeles.
OAK #4839-0050-9992 v8
GRANTOR:
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CITY OF SANTA CLARITA, a municipal R
corporation V
a
201_ By:
Exhibit F-1
Packet Pg. 125
Kenneth W. Striplin, City Manager
[SIGNATURE MUST BE NOTARIZED]
ATTEST:
City Clerk
APPROVED AS TO FORM:
Joseph Montes, City Attorney
OAK #4839-0050-9992 v8 Exhibit F-1
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Attachment No. 1
PROPERTY
For APN/Parcel ID(s):
3.d
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA
CLARITA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AND IS DESCRIBED
AS FOLLOWS: s
OAK #4839-0050-9992 V8 Exhibit F-1 —Attachment 1
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California
County of
On
ss
before
(Name of Notary)
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
OAK #4839-0050-9992 v8
Acknowledgement
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EXHIBIT F-2
Recording requested by, and when
recorded return to:
Serrano Development Group, Inc.
500 North Brand Boulevard, Suite 2120
Glendale, CA 91203
Attention: Jason Tolleson
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103,27383
QUITCLAIM DEED
(Close of Escrow)
For good and valuable consideration, the receipt of which is hereby
acknowledged, the City of Santa Clarita, a California municipal corporation ("Grantor"),
hereby quitclaims to Old Town -Main, LLC, a California limited liability company
("Grantee"), all of Grantor's right, title, and interest in and to the real property located in
the City of Santa Clarita, County of Los Angeles, California, and more particularly
described in Attachment No. 1 attached hereto and incorporated in this Quitclaim Deed
by reference ("Property"). This Quitclaim Deed is being recorded to extinguish and
terminate all beneficial interest in the Property in favor of the Grantor, inclusive of any
interest held by Grantor in its capacity as successor to the housing assets and functions
previously performed by the former Redevelopment Agency to the City of Santa Clarita,
pursuant to Health and Safety Code §34176.
Date:
ATTEST:
GRANTOR:
CITY OF SANTA CLARITA, a municipal
corporation
201_ By:
Kenneth W. Striplin, City Manager
[SIGNATURE MUST BE NOTARIZED]
OAK #4839-0050-9992 V8 EXHIBIT F-2
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City Clerk
APPROVED AS TO FORM:
Joseph Montes, City Attorney
OAK #4839-0050-9992 v8 EXHIBIT F-2
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Attachment No. 1
PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA
CLARITA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AND IS DESCRIBED
AS FOLLOWS:
OAK #4839-0050-9992 v8 EXHIBIT F-2—Attachment 1
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California
County of
On
ss
before
(Name of Notary)
3.d
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary
OAK #4839-0050-9992 v8
Acknowledgment
Signature)
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EXHIBIT G
UST REMOVAL WORK
�`
ATKINS
ENVIRONMENTAL
HELP, INC.
December 2, 2015
Via e-mail: tlane@sermnodevelopment.com
Ms.Tai Lane
Old Town -Main, LLC
% Serrano Development Group, Inc.
500 N. Brand Blvd., Suite 2120
Glendale, CA 91203
SUBJECT: Proposal for Turnkey Site Clearance Project at the Old Town Newhall City Block,
Including Removal of the Following:
• Three (3) Underground Storage Tanks (USTs),
• One (1) Concrete -Filled Clarifier,
• One (I )i Vehicle Hoist,
• One (1) Vehicle Wash Sump, and
• One (1) Vehicle Frame Straightener. Plus
• Approximately 250 square feet of Vinyl Asbestos Floor Tile under a SCAQMD
Approved Procedure 5 Workplan
Dear Ms. Lane:
Atkins Environmental HELP, Inc (AEH) is pleased to present this turnkey proposal including
Scope of Work and Estimated Investment for removal of the above listed vehicle maintenance /
repair related structures with associated piping located at the subject site. This work which can
be termed "Turnkey Site Clearance", will be performed for Old Town -Main, LLC (Client), a
division of Serrano Development Group which is in negotiations with the City of Santa Clarita for
purchase of this property. This project is part of site preparation for redevelopment.
Atkins Environmental HELP, Inc. is a full-service environmental consulting firm founded in 1987 D
to assist California businesses in managing their increasingly complex environmental o
compliance requirements. AEH is highly successful in providing expert, cost-effective a
compliance management to clients, including site preparation including underground storage N
tank removal / disposal. For such projects, AEH performs in accordance with the requirements D
established by State of California regulations (Article 7), local fire departments (COPA), and the v
County of Los Angeles Department of Public Works. AEH carries workman's compensation, X
professional & general liability insurance policies and requires proper coverage on the part of its
subcontractors. AEH will also comply with OSHA regulations and your safety requirements.
v
A real estate transaction is contemplated for the subject property; a set of parcels which contain E
t
at least three (3) abandoned USTs, one (1) concrete -filled clarifier, one (1) subterranean A
vehicle hoist, one (1) subterranean "hoist type" frame straightener (with two 14" diameter
hydraulic canisters buried vertically), —250 sq. ft. of asbestos floor tile, and one (1) vehicle wash Q
sump; all presumed to have associated piping. In order to obtain financing the prospective
owners wish to have these items, plus associated piping, removed prior to sale or
redevelopment.
P.O. Box 222320 . Santa Clarita . CA 91322-2320
661,260,2260 • 800.750.0622 • Fax 661.253.3555 • www.atkinsenvironmental.com
OAK #4839-0050-9992 VS Exhibit G-1
Packet Pg. 133
Proposal: Ms. Tel Lane — O/d Town -Main, LLC 2
Turnkey Site Clearance Project at the Old Town Newhall City Block
Atkins Environmental HELP, Inc. proposes the following Scope of Work and will furnish all labor,
equipment, materials, payments for permitting / tank registration and supervision required to
perform the proposed work.
TASK 1 - Obtain all necessary permits from the County of Los Angeles Department of
Public Works (LADPW) and contact Underground Service Alert at least three
days prior to the excavation activities as required.
TASK 2- It is presumed the tanks are not registered currently with the state, so tank
registration is included. Tank registration fees will be the responsibility of AEH.
Tank registration requires:
1) Application through the Los Angeles County Department of Public Works
(LADPW) for state UST registration, followed by,
2) Document each tank has a Hazardous Material Underground Storage
Permit (HMUSP), or prepare and submit an application to enable the
permitting of each tank (with the LADPW).
3) Once each UST is registered with the State and has a valid HMUSP, a
permit for tank closure can be submitted and approved by the LADPW.
TASK 3. Coordinate and oversee the break-out and removal of existing paving / soil as
required to expose the crown (top) of each tank and the related subsurface
structures identified above. This task includes provision and coordination of all
required fencing or barricades for traffic control within the open parking lot area (if
required).
The UST work will be accomplished according to each LADPW permit, but at
minimum will include:
UST #1 (Estimated UST volume of 500 nations)
a)
Saw -cut, break-out and disposal of approx. 100 sq./ft. of existing asphalt,
b)
Expose top of tank and determine contents / accommodate cleaning,
c)
Excavate around vault / UST,
d)
Degas UST if needed following SCAQMD procedures and permitted
equipment,
e)
Cold chisel a minimum of one inspection / cleaning port in top of tank,
0
Evacuate tank contents by triple rinsing to vacuum truck,
g)
Coordinate Marine Chemist or CIH to certify tank as "clean",
h)
"Safe" tank if required, then extract UST and place on recycling truck or
trailer,
i)
Coordinate proper disposal or recycling of the clean UST,
j)
Remove approximately 30 sq. ft. of asphalt and associated UST piping,
k)
Extract soil samples under UST and piping as required by LADPW permit,
1)
Back -fill voids with 3W crushed rock,
m)
Cold patch will be used to repave excavation and return parking capability,
n)
Where concrete replacement is called for use 2 sack slurry.
OAK #4839-00505992 v8
Exhibit G-2
3.d
Packet Pg. 134
Proposal: Ms. Tel Lane— Old Town -Main, LLC 3
Turnkey Site Clearance Project at the Old Town Newhall City Block
UST #2 (Estimated UST volume of 500 gallons)
a) Saw -cut, break-out and disposal of approx. 70 sq./ft. of existing concrete,
Concrete estimated at 8" thick,
b) Expose 2 hydraulic hoist cylinders + plumbing line to nearby reservoir
tank,
c) Expose top of estimated 500 gallon hydraulic fluid UST / reservoir
(presumed contents),
d) Evacuate tank contents by triple rinsing to vacuum truck,
e) Cold chisel a minimum of one inspection / cleaning port in top of tank,
f) Coordinate Marine Chemist or CIH to certify tank as "clean",
g) "Safe" tank if required, then extract UST and place on recycling truck or
trailer,
h) Remove approximately 30 sq. ft. of concrete and remove associated
piping,
i) Extract soil samples under UST and piping as required by LADPW permit,
j) Steel will go to certified recycling facility,
k) Break-out and remove existing and associated garage floor catch basin,
1) Back -fill with'/." crushed aggregate.
UST #3 (Estimated UST volume of 1,500 gallons)
a) Saw -cut, break-out and dispose of approximately 160 sq. ft. of existing
asphalt,
b) Expose top of tank and determine contents / accommodate cleaning,
c) Excavate around this presumed gasoline UST,
d) Degas UST if needed following SCAQMD procedures and permitted
equipment,
e) Cold chisel a minimum of one inspection / cleaning port in top of tank,
f) Evacuate tank contents by triple rinsing to vacuum truck,
g) Coordinate Marine Chemist or CIH to certify tank as "clean",
h) "Safe" tank if required, then extract UST and place on recycling truck or
trailer,
i) Remove approximately 30 sq. ft. of paving and associated UST piping,
j) Remove vent and fill lines,
k) Extract soil samples under UST and piping as required by LADPW permit,
1) Coordinate labor to assist tank cleaning / pumping,
m) Back -fill with %" crushed aggregate, approximately 8 tons.
Clarifier
a) Saw -cut, break-out and dispose of approximately 140 sq./ft. of existing
concrete,
b) Existing slab estimated to be 6" thick,
c) Excavate around clarifier,
d) Break-up concrete -filled clarifier and dispose to recycling facility,
e) Remove associated sample box (if applicable),
0 Back -fill with %" crushed aggregate,
g) Bring to near grade and patch to existing grade using a 2 sack concrete
mix,
Vehicle Frame Straightener and Vehicle Wash Sump
OAK#4839 00509992 V8 Exhibit G-3
.dd
Packet Pg. 135
Proposal: Ms. Tel Lane — O/d Town -Main, LLC 4
Turnkey Site Clearance Project at the Old Town Newham City Block
a) Saw -cut, break-out and dispose of 3 concrete areas:
b) First an area of 60 sq. ft. for the Frame Straightener,
c) Second an area -10 ft. x 2 ft. as a trench to remove one hydraulic line,
d) Third a 4 ft. x 4 ft. area associated with the vehicle wash sump,
e) Excavate around these vehicle related subsurface features,
f) Evacuate canister contents,
g) Extract soil samples under each feature and piping if required (by LADPW
permit),
h) Coordinate labor to assist with canister cleaning / pumping, recycling,
i) Back -fill with %" crushed aggregate.
TASK 4 - Final triple -rinsing of each tank and proper disposal of the rinsate (as required) at
an approved disposal site will be performed.
TASK 5 - AEH will arrange and pay any applicable fees associated with securing an active
State of California EPA Identification Number. If an EPA number has not been
assigned, a temporary number will be obtained through the California
Environmental Protection Agency - Department of Toxic Substances Control
(DTSC).
TASK 6 - Based on the contents of each UST, determine if any action is needed to satisfy
the South Coast Air Quality Management District, complete and submit required
notification forms and proceed documenting compliance with the applicable
regulations (i.e., tank degassing if gasoline).
TASK 7- Coordinate tank inspection by a Marine Chemist, Certified Industrial Hygienist
(CIH), or Certified Hazardous Materials Manager (CHMM) to certify each tank as
"clean", prior to appropriate disposal, as required.
TASK 8 - Remove and dispose of each certified clean tank under the direction of the Los
Angeles County Fire Department (CUPA) Fire Prevention Bureau per the Fire
Code and requirements of a LADPW tank closure permit. Remove and dispose
of the vehicle hoist and related piping / subsurface hydraulic canisters associated
with the vehicle hoist, and frame straightener, plus associated piping.
TASK 9 - Take up to two soil samples under each tank and one every 20 linear feet of
piping. Sample as required by the permit issued through the Los Angeles County
Department of Public Works and submit samples for testing to a State -certified
laboratory. Up to 13 samples total are anticipated under the USTs, clarifier, hoist,
frame straightener and vehicle wash sump, plus every 20' of associated piping.
Results will be based on standard turnaround time available In 5-10 working
days. Additional samples and tests may be required by the Inspector on-site.
TASK 10 - Remove up to three (3) idle subterranean features related to vehicle maintenance
/ repair (i.e., hoist, frame straightener, vehicle wash sump etc.). Samples of soil
below each subsurface feature will be extracted and analyzed, if required.
TASK 11 - Prepare and present draft site mitigation workplan(s) to the client for approval and
subsequent submittal / approval by the LADPW. Implement up to three approved
workplans with the intent to complete site mitigation by soil removal at up to three
UST sites on the target property. Monitor and report progress of site mitigation
efforts at each UST site and coordinate sidewall / bottom confirmation soil
sampling as required by the LADPW. Once removal of impacted soil has been to
the satisfaction of the LADPW, prepare closure reports as outlined in Task 13
below.
OAK #4839-00505992 v8 Exhibit G-4
3.d
Packet Pg. 136
Proposal: Ms. Tai Lane — O/d Town -Main, LLC $
Turnkey Site Clearance Project at the Old Town Newhall City Block
TASK 12 - Clean fill, crushed rock or aggregate will be made available for the purpose of
backfilling to grade.
As part of this excavation backfilling process, AEA recommends Old Town -Main,
LLC consider installing a series of ramps or transitions using this same material.
The intent would be to eliminate the current uneven surfaces (trip hazards) which
abound at this site, at least until the formal project excavation commences. The
City of Santa Clams has completed a limited number of these transitions; the
remainder represent significant risk to the current and prospective owner. Work
needed to implement these accident and injury prevention measures can be
viewed as a natural extension of this backfill acquisition and placement task. The
small investment needed can be agreed to prior to this work being performed.
TASK 13 - Preparation of a closure report for each UST system according to the Los
Angeles County Department of Public Works guidelines, is part of this proposal.
One electronic (PDF) copy will be provided to the Client as a final draft, and
approval received prior to this report being forwarded to the LADPW.
TASK 14 - AEH WII coordinate and pay for the review, approval, signature, and stamp of this
closure report by a California Registered Professional Engineer or Geologist (as
required).
TASK 15 - Once directed by the Client, submit the Final Closure Report(s) to Los Angeles
County Department of Public Works with a request for a no further action (NFA)
letter, if appropriate. The intent will be to secure a NFA letter for the entire city
block, as opposed to a NFA for each UST involved.
Estimated Timeline: The timeline needed to accomplish the above 15 tasks is outlined below.
Permitting
Fieldwork
Report Preparation
10 working days
3-5 working days
Within 30 days of end of
fieldwork
It is difficult to gauge the extent of site mitigation needed (if any) until certain site features are
removed and disposed with the intent of clearing the site, enabling further investigation. UST
#1 (the northern most underground tank) at this site is confirmed to have leaked at some time
in the past as gasoline and diesel range organics above regulatory screening levels were
identified in samples taken near / under this UST to a depth of 20' below ground surface. This
effort and estimated timeline for each of these known underground storage tank systems.
The site mitigation work is based on an excavation measuring 15 feet long by 15 feet wide and
30 feet in depth. The top ten feet of overburden is presumed to not be impacted, leaving only
about 167 cubic yards to be extracted (this has been rounded up to 170 cubic yards for the
purpose of this proposal, which includes excavation - and shoring if needed).
OAK #4839-00509992 v8 Exhibit G-5
3.d
Packet Pg. 137
Proposal: Ms. Tel Lane — Old Town -Main, LLC 6
Turnkey Site Clearance Project at the Old Town Newhall City Block
Tank
Description
Level of Effort
Estimated
Timaline
U$T
Sampling associated with a separate limited site assessment performed in
This assumes no cud. yams,
Peenitfind /s0e
2007 on the same properly indicated limited site mitigation wall be needed;
undo, 10of clean overburtlen,
MXlgatkm
#1
fuel impacted soil around and below this UST Sill need to be removed. The
AS a volume of mended soil
Workplan
sampling and analysis performed in 2007 cannot be considered conclusive
subject to removal using either
Development &
as soil samples extracted every five feet down to 40' figs in certain borings
the lay back and / or temporary
Acceptance
oil
Sere found to be free of contaminants or well below regulatorysoil
shoring memod as descJbed.
to worldng days
screening levels. In other borings within ten feet laterally, samples to
This site tungsten Can be
figs wedeter ined to bG well above Me soil screening levels for gasoline
re
accomplished fo! an Somali
$0],528.
Flekhw ork
d
}S workay5
o
and diesel. The same is five for berRene, toluene, ethylbenzene and
xylenes (fuel constituents). For this reason estimating the volume of
This eabmats covers waste
Rnal closure
impacted soil at depth can only be considered a best guess. In 2007, the
charactemu len, profiling.
Report
amount of soil estimated for removal was 20 cubic yards. The actualervatioo,
budin8.
Preparation:
volume may be two to ten times this amount.
conflrmatlon sampling (to
Wilkin 30 do"of
and of fieMwmk
document a complete site
For the purposes of estimating the volume of soil to be extracted to
announce has been
accomplish an adequate (IADPW approvable) site mitigation impacted soil
pedalrmed), manifesting and
dimensions of 15' was by 15' long by 30' deep was used as a model for
hauling by a licensed bucking
pricing (up to 170 cubic yang. There are two methods to exhad such
fieri to a formal treatment,
impacted soil which are considered cost effective generally. The first and
scum, & disposal facility,
most likely is to '14 back'the excavation, exposing the impacted soil by
ramping down to it, staging the dean soil on site for reuse in backfilling the
excavation. The second method is to use a temporary box shoring system,
Stich enables extraction of impacted soil almost surgically Sidle holding
back the adjacent formation X sideenall stability is of concern. This pricing
includes both these extraction methods R needed.
UST
This UST is believed to Me a vehicle hydraulic Ig reservoir. Hydraulic fluid
4D.uMc yards of imported soil
Pe triNng ISite
is so prevalent in commerce, and of such low hazaN the LA County CUPA
subject to removal as site
Mngation
#2
and DPW do trot regulate it. The US Dept. of Transportation does not
mitigation. The Investment
Workplan
consider it a hazardous substance for the purpose of labeling / placanding.
would involve laying back the
Development &
The Cal EPA Department of Toxic Substances Control(DTSC) defers to the
clean soil (and temporary
Acceptance:
LA County COPA. Since b is hydrocarbon based, an unauthorized release
showed possibly)to expose me
10 worltino dare
Mich impacts the subsurface may still require site mitigation, but the
Impacted soil and enable
screening levels are very high making site mitigation and cleanup less
remove Vs40 yams for an
n4maletl 527,984.
work
}S work tlays
expensive.
This estimate covers waste
Final Closure
Subsurface investigation for this UST was limited to joint environmental and
connotatio ioq profiling
Repod
geotechnical soil sampling in one boring between the concrete -filled
Sarni loading.
Preparation:
danger. less than 10' to the east, and the UST #2 location. The sampling
confirmation sampling (to
Within 30 days of
eM of fieltlwoM
and analysis performed as part of this subsurface investigation indicated
document a complete site
this area free of contaminants or well below regional (soil) screening levels
mitigation M1as been
(RSIs). At 2.5' b, in this boring oil range organics were detected at 334
Performed), manifesting and
ml Mich is scall below Ne regulatory screening level of 3,130 mg/I. No
hauling by a licensed bucking
hytlrocadwns were deteded at 10' logs. At 20' bgs diesel was detected at
firm to a permitted treatment,
60.9 mill, and oil range organics were call at 290 mWI. Both are Sell
sfnrage & disposal facility.
below the 108 mgt and 3,130 mgll RSLs for diesel and oil range organic
respectively. No benzene, toluene, ethylbenune or xylenes (fuel
constituents) Site detected in soil analyzed in samples taken from this
being. Estimating a volume of impacted soil at depth, is to presume these
results somehow indicate impact at greater depth which is somehow above
the RSIs, comtrory to the limited data described above. Assuming UST 2
has similar subsurface conditions to UST 1, results in a soil removal
volume of about 20 cubic Yards, with a potential impacted volume
Presumed to be ten times this amount.
UST
Lille is knoll about this UST which was discovered during a ground
This maker. 17D cud. yams,
Pennifing/site
penetrating order survey Performed in preparation for the geotechnical wont
under 1D' of clean wemal
Mitigation
#3
P mem er on this project site. Subsurface investigation for this UST was
al a volume of impacted soil
Workplan
limited to joint environmental and geotechnical soil sampling in one Moral
(subjed to removal using elmm
Development&
to 20' Ings less than five feet northwest of the footprint of this tank as
me lay back and /or temporary
Acceptance:
identified by a ground penetrating call survey. The sampling and analysis
shoring method as deacdbetl).
10 walking days
performed as part of the cement subsurface investigation indicated thisarea
This site nihipla h eaa be
free of contaminants or well below regional (soil) screening levels (RSIs) at
accomplished for an estlmatetl
$07,328.
Rworkda
}S work days
toluene,
fivargadin
2.5%atle 10'em
this in Nis boring. No hydrocarbons,detected
a e o xykn es (fuel were in soil
soil
This estmam coders waste
Final osule
nations
met concentrations
heavy m
in samples a ing. Similarly heavy
in samples taken from this boring. Similarly
abconamoaal profiling.
proton
ed opu
above than respective RSIs were detected. The results dee RG all
adi
avffioo, leading,
'zed
Prin
contaminants looked for depth were Sell below their respective RSIs.
Wilkin 30 days of
and of fieNwoM
fi.k
Estimating a volume of impacted soil at depth, is to presume these results
p
a complete aim
document e
document a
somehow missed impact at greater tlepth', possible but
s base
mngation M1asbeen
dcontaminant
contrary to the data described above, at the same time recognizing the
, madfed and
Periling
limitations of this tlata. Assuming UST 3 has conditions
b
by licensed tacking
by
harMar,
about 20 cubic y a
UST 1, results in a soil removal volume ve about 20 cubic yards
fie n
m a pdepostl treatment,
amount.
potential impaled volume presumed to be Mo to ten times this amount.
p
r
smra9e a disposal facility,
OAK #4839-00505992x8 Exhibit G-6
3.d
Packet Pg. 138
Proposal: Me. Tai Lane — Old Town -Main, LLC 7
Turnkey Site Clearance Project at the Old Town Newhall City Block
UST Extraction
The fieldwork necessary for UST extraction is estimated at 3-5 consecutive work days, in which
all three USTs are exposed, cleaned, and removed followed by under tank sampling.
Site Mitigation
Site mitigation would follow UST extraction only if impacted soil were encountered. It is
suggested preauthorization from the LADPW be sought to enable immediate removal of
impacted soil if observed upon UST extraction. This would be followed by confirmation
sampling to complete the site mitigation process for any USTs documented as having had an
unauthorized release. This presumes the LADPW policy has not changed and AEH is able to
obtain permission to proceed in this manner.
Any additional work outside this scope or required by the Client or the Los Angeles County
Department of Public Works (and approved by the Client) will be billed at the standard rate of
$2501 hour. No additional work will be performed without written approval from the Client.
• The tank sizes specified in this proposal will be used for permitting through the LADPW.
If actual tank size is greater, an agreeable adjustment in overall investment may be
necessary.
• AEH will not be responsible for site traffic involving vehicles not involved in project work.
• AEH will not be responsible for No Parking Signage or removal of parked cars.
• Weather permitting the fieldwork for this job scope is estimated at 5 working days.
• If any of these tanks are constructed of or wrapped in fiberglass, an additional disposal
fee will apply.
• Disposal allowance = 2% of tank capacity or 10 gallons maximum (30 gallons for Tank
3). Rinsate volumes exceeding this disposal allowance will be billed at cost plus 15%.
• In the event one or all of these USTs has been filled with sand or concrete slurry (inert
material), evacuating such solid material will be considered out of scope and additional.
An adjustment to the overall investment will need to be arranged and agreed to in
advance.
• Groundwater remediation is NOT included in this Scope of Work. If an unauthorized
release from one of these USTs or other subsurface features is documented, the Client
will be notified and guidance provided regarding options to affect site mitigation (clean
up). If further excavation (scoop and run) and sampling to confirm removal of
contaminants can be supported, a site mitigation workplan can be prepared for swift
LADPW approval. Any such site mitigation work would proceed on a Time and
Materials basis with the estimated investment level as outlined herein selected and
agreed to in advance. If the subsurface impact is considered pervasive the client will be
OAK #48350050 9992 v8 Exhibit G-7
3.d
Packet Pg. 139
Proposal: Ms. Tai Lane — Old Town -Main, LLC 8
Turnkey Site Clearance Project at the Old Town Newhall City Block
consulted immediately, options discussed and a course of action decided, so
concurrence from the LADPW can be sought. This approach would only be abandoned
in the unlikely event an imminent hazard to the public health or environment is
uncovered.
• Underground tank owners / operators are required to pay annual registration and
inspection fees. AEH will be responsible for providing evidence of current tank
registration. Registration will be coordinated by the consultant in preparation for tank
permitting, followed by tank closure permitting, and will be considered part of this Scope
of Work.
• The Los Angeles County Department of Public Works will require tank closure permit
fee(s). These fees will be the responsibility of AEH.
• Groundwater at this location is estimated to be at least 40 feet bgs (below ground
surface), with planned excavation limited to less than 15' bgs. There is a low probability
of reaching groundwater during this excavation. If groundwater is encountered during
the excavation, the Los Angeles County Department of Public Works is likely to require
clean fill go into the excavation, further assessment and the project referred to the Los
Angeles Regional Water Quality Control Board (LARWQCB).
• In the event the Los Angeles County Department of Public Works indicates this project
requires further Site Assessment or Remediation / mitigation, this agreement shall be
paid in full and a separate Site Assessment / Remediation proposal will be written.
• AEH will manage regulatory agency approvals but cannot accept responsibility for
success or timing.
• If underground lines or hazards containing gas, water or effluent, or utilities, large rocks,
ledge rock, water or debris interfere in the proposed excavation areas or are damaged
during installation, the cost of removal, repair or relocation of same shall be bome by the
Client. Concrete or asphalt greater than ten inches in depth, excessive rebar (amount
or size), unstable or contaminated soil constitutes an underground hazard.
• Clean up and hauling away of debris caused by these UST / concrete -filled clarifier /
vehicle hoist / vehicle frame straightener and vehicle wash sump excavations is
included.
• If the Client approves purchase / transport of clean fill, crushed rock or aggregate; the
site will be returned to grade or made ready for further excavation upon project
completion. Installation of uneven surface transitions or ramps using clean fill, crushed
rock or aggregate is an option for the client to consider as discussed in Task 11 above.
• Soil sampling will be performed as directed by the LADPW and CUPA which are
anticipated to serve as the regulatory authorities for this site clearance. This is expected
to include soil sampling at 2'— 4' below each UST / concrete -filled clarifier / vehicle hoist
/ vehicle frame straightener and vehicle wash sump plus related piping is included but
limited to up to two samples for each tank / clarifier / vehicle related subsurface feature,
and up to one sample for each piping run (i.e., no more than 20 linear feet of piping).
The total number of soil samples is anticipated to be 30 or less, with sampling and
analyses included in this Scope of Work.
OAK #4839-00505992 v8 Exhibit G-8
3.d
Packet Pg. 140
Proposal: Ms. Tai Lane - Old Town -Main, LLC 9
Turnkey Site Clearance Project at the Old Town Newhall City Block
• A certified compaction report will not be part of this Scope of Work.
• AEH will rely on the soils information provided within the geotechnical report prepared
by GeoCon West, Inc. for this site.
Asbestos containing vinyl floor tile (both red and white layers containing chrysotile in excess of
5%) was identified on the slab of the former Auto Collision Center building in the extreme
northwest corner of the property. This building has now been razed. The aerial extent of this
tile which will need to be removed or abated prior to slab removal and subsequent surface
disturbance is estimated at 250 square feet. Containment can be built around and over this
area to abate the tile property. Old Town -Main, LLC., wishes to have the asbestos containing
floor tile removed prior to sale or redevelopment; further surface disturbance.
The "Guidelines for Asbestos Site Clean -Ups", published by the South Coast Air Quality
Management District (SCAQMD; under Rule 1403 - Procedure 5 Plans), requires specific
particulate control procedures for any abatement project using an alternative combination of
techniques and / or engineering controls to handle the asbestos containing materials (ACM) or
asbestos containing waste material (ACWM) [Rule 1403(d)(1)(D)(v)]. Abatement project
examples which require a Procedure 5 Plan include all asbestos site clean-ups,
decontamination, open-air abatement and all demolition with asbestos. Disturbance of ACM
which generates ACWM requires a Procedure 5 Plan to certify site remediation.
The Procedure 5 Plan will be brief, in outline form, and not more than four pages long (in most
cases) and will include the following (if applicable):
• Scope of the overall project.
• Asbestos material(s) at the site, its condition, type, amount and specific location(s)
within the site.
• Abatement project stages with dates and time lines.
• Provisions for site preparation and control, prevention of contamination / migration and
site ingress / egress zones.
• Engineering work practices and asbestos emission controls.
• A description of procedures for work area clean-up and / or decontamination after bulk
removal.
• Provisions for handling, storing, transporting and disposing of the asbestos containing
waste generated by abatement activities.
• Air monitoring type(s) and clearance level to be achieved (if applicable).
• Type and amount of asbestos remaining on site (if any) to be removed or managed in
place and by whom. Removal of intact ACM and PACM remaining on site is a separate
project and not covered by the plan approval.
Required Procedure 5 Plan Attachment Development
OAK #4839-0050 9992 v8 Exhibit G-9
3.d
Packet Pg. 141
3.d
Proposal: Ms. Tai Lane — Old Town -Main, LLC 10
Turnkey Site Clearance Project at the Old Town Newhall City Block
Procedure 5 plans require preparation and submittal of certain attachments which are expected
to include:
• Procedure 5 Notification form with scheduled project dates (The Procedure 5 Plan will
not be approved without a contractor notification to the SCAQMD or proof of fees).
• Site Survey Inspection Report documenting the cause of the asbestos disturbance,
extent of the site contamination, and the CAC's observations, findings,
recommendations, and response action(s)
NOTE: Survey Report will comply with 40 CFR § 783- Subpart E; and SCAQMD Rule 1403(d)(1)(A), plus
the California Business & Professions Code § 7180 requirements].
• Sample(s) chain of custody and the lab analysis report must be included as part of the
formal survey report.
• Site map, plot plan, or drawing, showing street names and nearby sensitive receptors.
• Photographs (if available) with identifying notations to assist in evaluating the project.
• List of companies and contacts involved in the asbestos clean-up project.
• List of AQMD permitted equipment to be used in the project including serial and permit
numbers.
• Signature of the California Certified Asbestos Consultant (CAC) which prepared the
plan.
• CEQA Applicability Form 400 for any demolition, excavation or site grading activity
exceeding 20,000 sq. ft. (not applicable).
Asbestos Abatement Project Oversight
Atkins Environmental HELP, Inc proposes to coordinate and oversee a Scope of Work to be
performed by Precision Environmental (see attached proposal #151111 MYAt-Lyons Main from
Precision Environmentai). AEH will see to it all labor, equipment, materials, required clearance
sampling (if applicable) and supervision required to perform and complete the proposed project
work is provided.
AEH recommends the Procedure 5 Plan be presented as an "open air" abatement, as this will
require less investment. If this approach is rejected by the SCAQMD, then Precision
Environmental will need to construct a temporary containment structure around and over the
affected area; performing a conventional abatement. This will require the larger investment
which serves as the basis for the bid from Precision Environmental below. Regardless, the
abatement project must be an agreement between Serrano and the licensed asbestos
abatement contractor selected to perform this work.
Limitations and Exclusions - Asbestos Abatement Project
• The proposed asbestos abatement work is limited to the field days outlined in the
proposal from Precision Environmental.
OAK #4839-0050 9992 v8 Exhibit G-10
Packet Pg. 142
3.d
Proposal: Ms. Tel lane — Old Town -Main, LLC 11
Turnkey Site Clearance Project at the Old Town Newhall City Block
• Construction of containment plus actual abatement is estimated at two (2) field days or
less.
• If the fieldwork will take longer, the client will be notified and acceptable alternative
arrangements made.
• It is anticipated the SCAQMD will take a few days to two weeks to review and approve
the Procedure 5 Plan developed for this project. AEH will not be responsible for delays
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caused by the SCAQMD.
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• Asbestos clearance testing will be performed by a subcontractor to AEH. The budget
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for this testing requirement is estimated at $600 and is included in this Scope of Work.
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• Implementation of the elements of the Procedure 5 Plan will not take more than two (2)
field days (including asbestos clean-up).
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Asbestos Abatement Project Oversight
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All of the work outlined in this Scope of Work for Preparation and SCAQMD Approval of a
Procedure 5 Workplan, plus asbestos abatement project oversight will be completed in a
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workmanlike manner for an estimated investment of up to $3,497.00 payable from Old Town-
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Main, LLC., to AEH.
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Actual abatement will be performed by Precision Environmental pursuant to their agreement
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with Old Town -Main, LLC. (and payable to Precision Environmental directly by Old Town -Main,
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LLC.) submitted to Ms. Tai Lane (proposal #151111MYAt-Lyons Main). The asbestos
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abatement project work has been estimated at $4,950.71 by Precision Environmental, bringing
the total for this project to $8,447.71.
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Any work required and authorized but not itemized above will be performed on a time and
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materials basis. Only items specified in this Scope of Work are included. AEH will notify you
immediately and receive your authorization to proceed prior to going beyond budget. The
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estimated total investment is only for the performance of this specific scope of work outlined
above.
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The following assumptions have been made for purposes of this estimated investment
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quotation:
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• Procedure 5 Plan approval will occur within two weeks from submittal.
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• The required asbestos containment can be constructed within one (1) day.
• Actual asbestos abatement and clean-up will take less than two (2) days in the field.
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• Clearance testing analytical can be performed same day or within 24 hours.
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All of the work outlined in both of these Scopes of Work will be completed in a workmanlike
manner. With a reasonable contingency added for rounding purposes, the estimatedrg and
total investment is $300,000, which includes all regulatory authority fees, registrations,
applications and permits.
OAK #4839 0050 9992 v8 Exhibit G-11
Packet Pg. 143
Proposal: Ms. Tai Lane - Old Town -Main, LLC 12
Turnkey Site Clearance Project at the Old Town Newhall City Block
Any work required and authorized but not itemized above will be performed on a time and
materials basis. Only items specified in this Scope of Work are included.
This offer supersedes all prior offers, bids, oral agreements and negotiations of the parties for
the subject work, and no other agreements exist except as are contained in writing herein.
Monthly progress payments will be based on work completed.
If site mitigation work is to commence, it will be billed on a time and materials not -to -exceed
basis using the above grand total estimates as a guide. Billing and project updates can be
expected on a scheduled basis, agreed to by both parties but not to exceed 14 calendars days
between reports.
AEH plans to commence the project within a mutually agreeable scheduled date after receipt of
written approval. A detailed schedule consistent with your priorities will be developed.
Please execute the acceptance below and return a copy of this proposal to this office. AEH will
be pleased to revise this offer as may be required in a manner acceptable mutually.
Thank you for the opportunity to present this proposal and serve the environmental needs of
Old Town -Main, LLC. Please e-mail biatkinsOatkinsenvironmental.com or call.
YY000uurrrss very tru�ly,%������]
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Pr ent
Atkins Environmental HELP, Inc
OAK #4839-0050 9992 v8
Accepted by.
Signature
Authorized Agent for Old Town -Main, LLC
Printed Name
Exhibit 6-12
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Proposal: Ms. Tai Lane — Old Town -Main, LLC 13
Turnkey Site Clearance Project at the Old Town Newhall City Brock
GENERAL TERMS AND CONDITIONS
WARRANTY. AT%INS ENVIRONMENTAL HELP, INC (AER) provides services in accordance with generally accepted
professional practices in its fields Of specialty. No other womanly or representation, either expressed or implied, is included or
intended as part Of its services, proposals, agreements, or reports.
SCOPE AND EXECUTION OF SERVICES. AEH will diligently proceed with the agreed upon scope of services and will provide
such services in a timely manner, However, the time required for completion of sehtces may vary due to conditions unknown to or
beyond the control of A£H. NO wanantiee are granted regarding the time required for AEH completion of Its duties under this
Contract. AEH will not be responsible for any damages, Consequential or otheM'ise, caused by delay in the completion Of Its
services. AEN shall not be considered In default in performance of its Obligations where performance Of any obligation Is prevented
Or delayed by any cause which is beyond its reasonable control. In the event the Client requests termination Of services prior to
Completion, A£H reserves the right t0 complete such analyses and records as may be necessary to place its files in order and
where considered necessary to protect its professional reputation, to complete a report on the work performed t0 date Of
determination. A termination charge of up to 30 percent of charges incurred to date Of notice of termination by the Client may be
made at the discretion OfAEN,
COMMENCEMENT OF WORK. The work shall commence immediately upon receipt of notice to proceed or upon signing of the
woA proposal by an authorsed company representative. If, after commencement of the work, the project is delayed for any reason
beyond the control 01 for more than 6o days, the terms and conditions contained herein are subject t0 revision.
TERMS OF PAYMENT. All invoices shall be due antl payable upon receipt. Accounts are considered past due if payment has riot
been received within 10 days of the date of Invoice. All past due accounts are subject to a late charge of 1.5% per month on the
outstanding balance. Monthly progress payment requests will be based on work completed.
RIGHT OF ENTRY. Client will furnish night of entry for AEH to make borings, take samples and/or perform necessary work within
the boundaries of the work area.
SUBSURFACE OBSTRUCTIONS. Chant shall be responsible for designating the location Of all utility lines and other subsurface
obstructions within the boundaries of the work area. ACR may assist Client in obtaining locator services t0 help Client In making
such identification; Client will indemnify and hold AEH harmless against any damages, 1055 Or liability arising out Of or connected
with the accuracy, or inaccuracy of underground obstruction identification, excepting which arises from the scope negligence of
AEH In every instance Client will remain responsible for idan fifcation of underground obstructions.
LIMITATION OF LIABILITY. To the fullest extent perniffed by law, Client agrees to limit the liability Of AEH, its owners and
employees, for any acts, errors or omissions or breaches Of contract to $5,000 Or the amount of AEHS fee, whichever is greater. In
no event shall AEH be liable for any indirect, special Or consequential loss Or damage Or liability. Failure Of Client t0 give written
notice to AEN Of any claim Or negligent act, error omission within one (1) year after completion of the services to be performed
thereunder shall constitute a waive of said claim by Client
INDEMNIFICATION. Subject to the limitation of liability above and the second sentence hereof, each party shall indemnify the other
from thin -party claims arising out of the negligence of the indemnifying party to the extent such loss or expense is caused by the
party's negligence. M addition, Client agrees t0 intlemnify, defend and hold AEII harmless from any lass, cost, damage Oreximmse
(including attorney's fees), arising out Of or in connection with ACflb performance for any resulting advirropmental pollution Or
contamination except to the extent such pollution or contamination is newly caused or increased by the active negligence Orwllfful
scooduct of AEH. NO THIRD PARTY BENEFICIARIES. There are no third party fenefcianes of this agreement between Client
and ACH antl no third party shall be entitled t0 rely upon any work performed or reports prepared by AEH thereunder for any
purpose whatsoever. Client shall indemnify and hold AEH harmless against any liability t0 any third party for any loss, expenses, or
damages onsing out of or in connection with reliance by any such third party on any work performed or reports issued by AEN
hereunder.
DISPUTES. Any controversy, claim or dispute shall be constructed antl enforoed in accordance with the laws of the some from
which AFII services are procured. In any legal or arbibation proceedings brought by either party to enforce or interpret any of the
terms or conditions of this Agreement including the collection of any payments due thereunder, the prevailing party shall be entitled
to recover all reasonable Costs incurred in defense M the claim, including stat time at current billing rates, court Costs, attorneys'
fees, antl otherolaim-related expenses.
OTHER. If AFII is requested to respend to any mandatory orders for the production of documents or witnesses on Clients behalf
regarding work performed by A£11, Client agrees t0 pay all costs incurred by AFH, not reimbursed by Others in responding t0 such
ortler, including staff time at current billing rates and reproduction expenses.
These General Terms and Conditions shall be used in combination with a Professional Service Agreement proposal, purchase
ortler or contract. The Intent will be for A£H to be engaged as general contractor for the site clearance portion Of this project.
These combined documents shall be the entire agreement and shall supersede any other agreements vert en or oral, between
Client and AE/1 relating to such matter. In case Of Conflict Or inconsistency between these General Terms and Conditions and any
other contract documents (excepting payment provisions), these General Terms and Conditions shall control. If unenforceablethe
doouments) shall remain In effect to the extent permitted by law. The Terms and Conditions of this document, taken as a whole,
shall be .If and void at AEH'., option if Client has not signed and returned a copy of the entire Agreement to AEH Our to
commencement of work by AEH
OAK #4839-00505992 v8 Exhibit G-13
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Packet Pg. 145
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OVERSIGHT BOARD RESOLUTION NO. 16-05
A RESOLUTION OF THE OVERSIGHT BOARD TO THE
SUCCESSOR AGENCY OF THE SANTA CLARITA
REDEVELOPMENT AGENCY APPROVING THE PURCHASE,
SALE AND GRANT AGREEMENT WITH LAEMMLE
NEWHALL, LLC FOR THE OLD TOWN NEWHALL LAEMMLE
THEATRE PROJECT
WHEREAS, the Oversight Board to the Successor Agency of the Santa Clarita
Redevelopment Agency ("Oversight Board") was established to direct the Successor Agency to
the former Santa Clarita Redevelopment Agency ("Successor Agency") pursuant to Assembly 3
Bill x1 26, chaptered and effective on June 27, 2011, Assembly Bill 1484 chaptered and effective °.�°
on June 27, 2012, and Senate Bill 107 chaptered and effective on September 22, 2015 (together, w
the "Dissolution Act"); c
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WHEREAS, among the duties of successor agencies under the Dissolution Act is the 'w
preparation of a long-range property management plan that addresses the disposition and use of °mow,
the real properties of the former redevelopment agency for consideration by a local oversight
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board and California Department of Finance ("DOF") for purposes of administering the wind -
down of financial obligations of the former Redevelopment Agency;
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WHEREAS, Health and Safety Code ("HSC") Sections 34191.4 and 34191.5 provide
that within six (6) months of the Successor Agency receiving a Finding of Completion from the t
DOF pursuant to Section 34179.7, the Oversight Board is to review and approve the Successor w
Agency's Long Range Property Management Plan ("LRPMP") that addresses the disposition and E
use of the former redevelopment agency's real property, which LRPMP then is submitted to the R
DOF for review and approval;
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WHEREAS, the Successor Agency received its Finding of Completion from the DOF on
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June 20, 2013; '
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WHEREAS, the Successor Agency prepared an LRPMP consistent with the provisions
of the Dissolution Act, HSC Section 34191.5, and the guidelines made available by DOF;
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WHEREAS, the Oversight Board approved the LRPMP on December 17, 2013;
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WHEREAS, the Department of Finance approved the LRPMP on June 27, 2014;
WHEREAS, in addition to the LRPMP as required by law, the Oversight Board and
Department of Finance also adopted Property Disposition Procedures to ensure that the long term
value to the taxing entities was considered when disposing of properties outlined in the LRPMP;
and
WHEREAS, in order to implement the LRPMP specific to the property known as the
"Redevelopment Block," more specifically the property bound by Lyons Avenue, Railroad
Packet Pg. 146
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Avenue, 9t' Street and Main Street, the Successor Agency administered a Request for
Qualifications (RFQ) process;
WHEREAS, as a part of that process, the Successor Agency entered into Exclusive
Negotiations with Laemmle Theatres;
WHEREAS, those negotiations resulted in a proposal to divide the property into three
developments: the Mixed Use Project, the Laemmle Theatre Project and the Public Parking
Proj ect;
WHEREAS, Laemmle Newhall, LLC was created for the purposes of the Laemmle
Theatre Project;
WHEREAS, Laemmle Newhall, LLC proposed to purchase approximately 12,680
square feet of the Redevelopment Block in order to develop the Laemmle Theatre Project, for its
appraised fair market value purchase price of $440,525;
WHEREAS, the Successor Agency Board approved the Purchase and Sale Agreement
with Laemmle Newhall LLC, for the proposed Laemmle Theatre Project on February 9, 2016
WHEREAS, public notice of this meeting before the Oversight Board was provided
pursuant to Health and Safety Code Section 34181(f);
NOW, THEREFORE, THE OVERSIGHT BOARD TO THE SUCCESSOR
AGENCY OF THE SANTA CLARITA REDEVELOPMENT AGENCY DOES HEREBY
RESOLVE AS FOLLOWS:
Section 1. The Recitals set forth above are true and correct and incorporated herein
by reference.
Section 2. The Oversight Board finds that the Successor Agency complied with the
Dissolution Act.
Section 3. The Oversight Board finds that the Successor Agency's implementation of
the Long Range Property Management Plan was consistent with the Property Disposition
Procedures.
Section 4. The Oversight Board hereby approves the Purchase and Sale Agreement
("Agreement") with Laemmle Newhall, LLC, for the proposed Laemmle Theatre Project, and
does hereby authorize and direct the Executive Director to the Successor Agency, or his
designee, to execute, enter into and take all actions necessary to implement the Agreement, sign
all legal documents to process the Agreement, subject to Agency Counsel approval, including the
Grant Deed and Assignment and Assumption Agreement with the City of Santa Clarita ("City").
Section 5. The Oversight Board hereby acknowledges and agrees that the City's
Developer Fee Fund contributed $681,560 to the acquisition of the Redevelopment Block and
must be repaid, dollar for dollar, the amount of its contribution as a proportionate share of the
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purchase price. The combined purchase price of the real property for the Mixed Use Project
($692,509), Laemmle Theatre Project ($440,525) and the Public Parking Project ($0.00) is
$1,133,034. The amount due the City's Developer Fee Fund of $681,560 represents
approximately 60% of the combined purchase price of $1,133,034. Accordingly, of the $692,509
purchase price for the Laemmle Theatre Project, $265,030 shall be distributed to the City's
Developer Fee Fund at Close of Escrow, and after deduction of Successor Agency's share of
closing costs, the balance shall be distributed 48% to the City as Housing Successor Agency for
deposit to its Low and Moderate Income Housing Asset Fund created pursuant to §34176(d) of
the Dissolution Act, and 52% to the Successor Agency for distribution by the Los Angeles
County Auditor -Controller as property tax to the taxing entities in accordance with §34188 of the
Dissolution Act.
PASSED, APPROVED, AND ADOPTED this 22nd day of February 2016.
Kenneth W. Striplin
Oversight Board Chair
ATTEST:
Marilyn Sourgose
Oversight Board Meeting Clerk
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STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF SANTA CLARITA )
I, Marilyn Sourgose, Oversight Board Meeting Clerk, do hereby certify that the foregoing
Resolution was duly adopted by the Oversight Board of the Successor Agency to the Former
Redevelopment Agency of the City of Santa Clarita at a regular meeting thereof, held on the
22nd day of February 2016, by the following vote:
AYES:
NOES:
ABSENT:
Marilyn Sourgose
Oversight Board Meeting Clerk
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PURCHASE, SALE AND GRANT AGREEMENT
by and between the
SUCCESSOR AGENCY TO THE FORMER REDEVELOPMENT AGENCY OF THE
CITY OF SANTA CLARITA,
a public entity
and
CITY OF SANTA CLARITA,
a California municipal corporation
LAEMMLE NEWHALL, LLC,
a California limited liability company
regarding the
Old Town Newhall Laemmle Theatre Project
Dated: , 2016
OAK #4852-2324-3305 v7
02012-1041
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TABLE OF CONTENTS
Page
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DEFINITIONS; REPRESENTATIONS AND WARRANTIES; CHANGE IN s
OWNERSHIP, MANAGEMENT AND CONTROL...............................................4 c
1.1
Definitions
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1.2
Representations and Warranties............................................................
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1.3
Change in Ownership, Management and Control of Developer ..............
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PURCHASE AND SALE...................................................................................15
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2.1
Purchase and Sale of Theatre Property ..................................................
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2.2
Purchase Price; Deposit.........................................................................
15
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2.3
Joint Condition Precedent.......................................................................
15
2.4
Successor Agency Conditions Precedent ...............................................
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2.5
City Conditions Precedent......................................................................
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2.6
Developer Conditions Precedent............................................................
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2.7
Escrow....................................................................................................20
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2.8
Closing....................................................................................................22
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2.9
Delivery of Documents and Closing Funds .............................................
22
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2.10
Review of Title........................................................................................
23
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2.11
Title Insurance........................................................................................
24
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Property Taxes and Assessments..........................................................
25
2.13
Documents
2.14
..............................................................................................25
AS -IS CONVEYANCE............................................................................
26
2.15
Independent Investigation.......................................................................
26
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Disclaimers.............................................................................................
28
2.17
Waivers and Releases............................................................................
28
ENTITLEMENT
AND DEVELOPMENT OF THE PROJECT .............................
29
3.1
Schedule of Performance
29
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3.2
Certificate of Compliance for Theatre Property .......................................
30
3.3
Entitlement of the Project........................................................................
30
3.4
Permits....................................................................................................30
OAK #4852-2324-3305 v7
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TABLE OF CONTENTS
(continued)
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3.5
Development of Project...........................................................................
30
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3.6
Cost of Development; Theatre Development Grant; Theatre
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Operating Covenant................................................................................
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3.7
Sources and Uses..................................................................................
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Insurance Requirements.........................................................................
33
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3.9
Rights of Access.....................................................................................
34
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3.10
Compliance With Applicable Laws; Prevailing Wage Requirements.......
35
3.11
Final Completion of Project.....................................................................
36
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3.12
Liens and Stop Notices...........................................................................
36
3.13
Right of Successor Agency to Satisfy Other Liens After any Closing .....
36
3.14
Mortgage, Deed of Trust, Sale and Lease -Back Financing .....................
36
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Covenants Regarding Operation, Management and Maintenance
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Priorto Closing.......................................................................................
37
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COVENANTS, RESTRICTIONS AND AGREEMENTS ....................................
38
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4.1
Uses........................................................................................................38
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4.2
Prohibited Uses......................................................................................
38
4.3
Taxes and Assessments.........................................................................
39
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4.4
Effect and Duration of Covenants...........................................................
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No Successor Agency Approval of Tenants Required ............................
39
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4.6
Obligation to Refrain From Discrimination; Form of
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Non -Discrimination and Non -Segregation Clauses .................................
40
4.7
Effect and Duration of Covenants...........................................................
41
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Sales Tax Point of Sale Designation.......................................................
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4.9
Old Town Newhall Public Parking Garage ..............................................
42
DEFAULTS AND REMEDIES...........................................................................44
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Default Remedies - General...................................................................
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Default Resolution and Legal Actions .....................................................
44
5.3
Termination.............................................................................................46
OAK #4852-2324-3305 v7
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TABLE OF CONTENTS
(continued)
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5.4
Successor Agency Option to Repurchase, Reenter and Repossess ......
47
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5.5
Rights and Remedies Are Cumulative....................................................
49
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5.6
Inaction Not a Waiver of Default.............................................................
49
6. GENERAL PROVISIONS..................................................................................49
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6.1
Notices, Demands and Communications Between the Parties ...............
49
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Enforced Delay; Extension of Times of Performance .............................
50
6.3
Successors and Assigns; Assignment to City .........................................
51
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Relationship Between Successor Agency, City and Developer ..............
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6.5
Successor Agency or City Approvals and Actions ..................................
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Counterparts...........................................................................................51
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6.7
Integration...............................................................................................52
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6.8
Brokerage Commissions.........................................................................
52
6.9
Titles and Captions.................................................................................
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6.10
Interpretation...........................................................................................52
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6.11
Modifications...........................................................................................52
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6.12
Severability.............................................................................................52
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6.13
Computation of Time...............................................................................
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6.14
Legal Advice...........................................................................................
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6.15
Time of Essence
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6.16
Cooperation............................................................................................
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Conflicts of Interest.................................................................................
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6.18
Time for Acceptance of Agreement by Successor Agency and City.......
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6.19
Developer's Indemnity............................................................................54
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6.20
Cooperation in the Event of Legal Challenge to Project Approvals.........
54
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6.21
Successor Agency's Indemnity...............................................................
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6.22
Non -liability of Officials and Employees of Successor Agency and
City.......................................................................................................... 55
6.23 Legal Fees..............................................................................................55
OAK #4852-2324-3305 v7 -iii-
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TABLE OF CONTENTS
(continued)
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6.24 Applicable Law; Venue........................................................................... 55 s
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6.25 Survival...................................................................................................55 m
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LIST OF EXHIBITS
Exhibit A Legal Description — Old Town Newhall Property
Exhibit B Conceptual Project Plans
Exhibit C Theatre Operating Covenant
Exhibit D Form of Grant Deed
Exhibit E Schedule of Performance
Exhibit F Assignment and Assumption Agreement
Exhibit G-1 Form of Quitclaim Deed — Final Completion
Exhibit G-2 Form of Quitclaim Deed — Close of Escrow
Exhibit H Right of Entry Permit
Exhibit I Site Preparation Grant Escrow Agreement
Exhibit J Operating Covenant Grant Escrow Agreement
Exhibit K Parking Parcel
OAK #4852-2324-3305 v7 LIST OF EXHIBITS
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PURCHASE, SALE AND GRANT AGREEMENT
Old Town Newhall Laemmle Theatre Project
THIS PURCHASE, SALE AND GRANT AGREEMENT ("Agreement") dated as of
this day of , 2016 ("Date of Agreement"), is entered into by and between the
SUCCESSOR AGENCY TO THE FORMER REDEVELOPMENT AGENCY OF THE
CITY OF SANTA CLARITA, a public entity ("Successor Agency"), the CITY OF SANTA
CLARITA, a California municipal corporation ("City") and LAEMMLE NEWHALL, LLC, a
California limited liability company ("Developer"). Successor Agency, City and Developer
are sometimes referred to herein individually as a "Party" or collectively as the "Parties".
RECITALS
The following Recitals are a substantive part of this Agreement; capitalized terms
used herein and not otherwise defined are defined in Section 1.1 of this Agreement:
A. Fee title to certain real property bounded by Lyons Avenue, Railroad
Avenue, 9t" Street and Main Street located in Santa Clarita, California, approximating 1.6
acres, designated as Assessor Parcel Numbers 2831-007-900, -901, -902, -903, -904,
-905, -906, -907, and -908 and more particularly described in the legal description
attached hereto as Exhibit A ("Old Town Newhall Property'), is vested in the Successor
Agency.
B. As recognized in the Long Range Property Management Plan ("LRPMP")
prepared by the Successor Agency dated December 17, 2013, and approved by the
Oversight Board to the Successor Agency of the Redevelopment Agency of the City of
Santa Clarita ("Oversight Board"), on December 17, 2013, pursuant to Resolution No.
13-06, and the State of California, Department of Finance ("Department"), by letter
dated June 27, 2014, the Successor Agency owns forty-six percent (46%) of the
beneficial interest in the Old Town Newhall Property, the City owns eleven percent (11 %)
of the beneficial interest in the Old Town Newhall Property, and the City as Housing
Successor to the former Redevelopment Agency of the City of Santa Clarita ("Housing
Successor") owns forty-three percent (43%) of the beneficial interest in the Old Town
Newhall Property.
C. In accordance with the LRPMP, on November 13, 2014 the Successor
Agency solicited qualifications for the sale and development of the Old Town Newhall
Property.
D. On July 14, 2015, Successor Agency, City and Developer entered into that
certain Exclusive Negotiation Agreement ("Theatre ENA") regarding the potential sale of
fee title to a portion of the Old Town Newhall Property by Successor Agency to
Developer and Developer's development of a multi -screen movie theatre, with ancillary
office space and ground floor retail, within a multi -story, approximately 20,800 square
building, to be further refined during the term of the Theatre ENA.
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E. Successor Agency, City and Developer have negotiated in good faith in
accordance with the Theatre ENA and now desire to enter into this Agreement to provide
for:
(1) Developer's preparation and Successor Agency's approval of a plat map and
legal description of a portion of the area of the Old Town Newhall Property to be
conveyed to Developer ("Theatre Property"), and Successor Agency securing
from City approval of a certificate of compliance for the creation of the Theatre
Property as a separate legal parcel in accordance with the California Subdivision
Map Act and Chapter 16.35 of the Municipal Code ("Theatre Property Certificate
of Compliance");
(2) Successor Agency's disposition of the Theatre Property to Developer at fair
market value;
(3) Developer's development of the Theatre Property in accordance with the
Project Approvals and this Agreement; and
(4) City's financial assistance to Developer as more particularly described in
Section 3.6 herein for the acquisition of the Theatre Property and development of
the Project on the Theatre Property in a total amount not to exceed THREE
MILLION FOUR HUNDRED TWENTY THOUSAND FIVE HUNDRED TWENTY
FIVE AND 00/100 DOLLARS ($3,420,525.00)("Theatre Development Grant"), in
exchange for Developer's commitment to develop the Project and operate the
Theatre Property in accordance with terms provided in the "Theatre Operating
Covenant" attached hereto as Exhibit C.
F. Developer shall acquire the Theatre Property and develop it consistent with
the Old Town Newhall Specific Plan ("Specific Plan"), with a multi -screen (no less than
six screens and 475 to 550 seats) movie theatre ("Theatre Component"), with ancillary
office space and ground floor retail ("Office/Retail Component"), within a multi -story,
approximately 20,800 square foot building (collectively, the Theatre Component and
Office/Retail Component is referred to herein as the "Project"), as generally depicted in
the conceptual plans attached hereto as Exhibit B and incorporated herein by this
reference ("Conceptual Project Plans"), subject to such revisions and modifications as
may be required by the City pursuant to the Project Approvals.
G. The Old Town Newhall Property is located within the Urban Center zone
("UC") of the Specific Plan, and is designated UC in the City's General Plan land use
element and Zoning Ordinance set forth in Title 17 of the Municipal Code. The
development assumptions for the Old Town Newhall Property within the UC zone as set
forth in the Specific Plan provides for a public parking garage producing 400 parking
spaces, along with `liner' retail up to 34,000 square feet and 96,000 square feet of space
dedicated to housing or office above. The Project on the Theatre Property is consistent
with the Specific Plan, and the environmental impacts of approving the Specific Plan and
the implementation thereof was analyzed under the California Environmental Quality Act
("CEQA") (set forth in Public Resources Code, section 21000 et seq.), pursuant to the
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Draft Master Environmental Impact Report for the Old Town Newhall Specific Plan, as
modified by the Final Master Environmental Impact Report for the Old Town Newhall
Specific Plan (SCH 42005021012), (together, "FEIR") certified by the City Council on
November 8, 2005 by Resolution No. 05-133.
H. The Project contemplated by this Agreement will require (i) application by
Developer to City for a Design Review Permit ("Development Permit") in accordance
with the Specific Plan and analysis under CEQA, (ii) application by Successor Agency to
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City for a Certificate of Compliance for the Theatre Property. Collectively, the FEIR,
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Specific Plan, CEQA analysis of the Project, Development Permit and Theatre Property
Certificate of Compliance are the "Project Approvals." Notwithstanding the approval and
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execution of this Agreement by the Successor Agency and City, the Developer hereby
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acknowledges that it understands that the City is not committing or agreeing to undertake
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any acts or activities requiring the subsequent independent exercise of discretion by the
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City, specifically including (i) the adoption or certification of an environmental assessment
as required by CEQA, (ii) the adoption of a statement of overriding considerations in
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accordance with Public Resources Code Section 21081(b) if significant effects on the
environment cannot be mitigated, or (iii) approval of the Project Approvals or other land
use entitlements needed for the Project. Furthermore, Developer hereby acknowledges
and agrees that the City retains its discretion to deny, disapprove or condition any and all
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such environmental assessments, land use applications, Project Approvals and any other
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discretionary approvals necessary for the implementation of the Project.
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I. Developer acknowledges that notwithstanding the approval of this
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Agreement by Successor Agency and City, this Agreement remains subject to review and
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approval by the Oversight Board.
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J. The Project will further the Specific Plan's vision to transform Old Town
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Newhall into a pedestrian -oriented district with a mix of office, retail, restaurant,
entertainment and service commercial businesses and housing, resulting in increased
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property taxes and sales and use tax, as well as temporary construction jobs and
permanent full-time and part-time employment opportunities.
K. The City asserts that the Theatre Development Grant is being provided to
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Developer in accordance with authority conferred pursuant to California Government
Code §§ 52200 et seq., following public notice and a hearing in accordance with
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California Government Code § 53083.
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L. The Successor Agency and City assert that the execution and performance
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of this Agreement is in the vital and best interests of the City, Successor Agency and the
Affected Taxing Entities, and the health, safety and welfare of the City's residents, and is
in accord with the provisions of applicable federal, state and local law.
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AGREEMENT
NOW, THEREFORE, Successor Agency, City and Developer hereby agree as
follows:
1. DEFINITIONS: REPRESENTATIONS AND WARRANTIES: CHANGE IN
OWNERSHIP, MANAGEMENT AND CONTROL.
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1.1 Definitions. a
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"Affiliate of Developer" means an entity or entities in which Developer or E
Developer's Principal retains more than fifty percent (50%) in the aggregate, directly or g
indirectly, of the ownership or beneficial interest therein and in which Developer or
Developer's Principal retains control of such entity or entities. For the purposes of this
definition, "control" means the possession, direct or indirect, of the power to direct or m
cause the direction of the management and policies of an entity or a person, whether 00
through the ownership of voting securities, by contract, or otherwise, and the terms
"controlling" and "controlled" have the meanings correlative to the foregoing. r
"Affected Taxing Entities" means taxing entities that benefit from distribution of
property tax and other revenue pursuant to Health and Safety Code § 34188.
"Agreed Extension of Performance" is defined in Section 6.2.
"Agreement" means this Purchase, Sale and Grant Agreement between
Successor Agency, City and Developer.
"Applicable Laws" means, collectively: (i) all State and Federal laws and
regulations applicable to the Theatre Property and the Project as enacted, adopted and
amended from time to time, including Environmental Laws; (ii) all City policies, standards
and specifications set forth in this Agreement and the Project Approvals, including the
specific conditions of approval adopted with respect to the Project Approvals; (iii) with
respect to matters not addressed by this Agreement or the Project Approvals but
governing permitted uses of the Theatre Property, building locations, sizes, densities,
intensities, design and heights, site design, setbacks, lot coverage and open space, and
parking, those City ordinances, rules, regulations, official policies, standards and
specifications in force and effect on the Date of Agreement; and (iv) with respect to all
other matters, including building, plumbing, mechanical and electrical codes, those City
ordinances, rules, regulations, official policies, standards and specifications in force and
effect as may be enacted, adopted and amended from time to time, including ordinances,
resolutions, orders, rules, official policies, standards, specifications, guidelines or other
regulations, which are promulgated or adopted by the City (including but not limited to any
City agency, body, department, officer or employee) or its electorate (through the power
of initiative or otherwise) after the Date of Agreement, except those in conflict with this
Agreement.
"Approved Condition of Title" is defined in Section 2.10.
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"As -Is Condition" is defined in Section 2.14.
"Assignment and Assumption Agreement" means the Assignment and
Assumption Agreement described in Section 6.3 and to be executed and recorded at
Closing substantially in the form attached hereto as Exhibit F and incorporated herein.
"CEQA" or California Environmental Quality Act is defined in Recital G.
"City" means the City of Santa Clarita, a California municipal corporation.
"City Action" or "City Actions" are defined in Section 4.9.
"City's Actual Knowledge" or words to such effect, shall mean the present, actual
knowledge of Thomas Cole, the City's Director of Community Development, Jason
Crawford, Manager of Economic Development and Marketing, and Denise Covert,
Economic Development Associate, excluding constructive knowledge or duty of inquiry,
existing as of the Date of Agreement.
"City Conditions Precedent" is defined in Section 2.5.
"City Council" means the City Council of the City of Santa Clarita.
"City Manager" means the City Manager of the City.
"Claims" means liabilities, obligations, orders, claims, damages, governmental
fines or penalties, and actual expenses of defense with respect thereto, including
reasonable attorneys' fees and costs.
"Close of Escrow" is defined in Section 2.8.
"Closing" is defined in Section 2.8.
"Closing Default" is defined in Section 5.2(3).
"Commence Construction", "Commenced Construction", or "Commencement
of Construction" or similar phrases shall be deemed to have occurred when the
Developer has commenced Initial Site Preparation for the Project on the Theatre
Property, and such date shall be memorialized in writing by the Parties.
"Conceptual Project Plans" is defined in Recital F and depicted in Exhibit B
attached hereto and incorporated herein by this reference.
"Control" is defined in Section 1.3(2).
"Date of Agreement" means the date first set forth above.
"Day -to -Day Management" means active, day-to-day management
responsibilities for the activities of Developer.
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"Default" is defined in Section 5.1.
"Department" is defined in Recital B.
"Deposit" means the $20,000.00 good faith deposit to be provided by Developer
pursuant to Section 2.2.
"Developer" means Laemmle Newhall, LLC, a California limited liability company.
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"Developer Conditions Precedent" is defined in Section 2.6.
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"Developer Indemnitees" is defined in Section 6.21. c
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"Developer's Principal" or "Principal' is Greg Laemmle.
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"Development Permit" is defined in Recital H.
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"Documents" is defined in Section 2.13.
"Environmental Laws" means, collectively: (i) the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 U.S.C. § 9601, et seq., (ii)
the Hazardous Materials Transportation Act, as amended, 49 U.S.C. § 1801, etseq., (iii)
the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6901, et seq.,
(iv) the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251, et seq., (v)
the Clean Air Act, as amended, 42 U.S.C. § 7401, et seq., (vi) the Toxic Substances
Control Act, as amended, 15 U.S.C. § 2601, et seq., (vii) the Clean Water Act, as
amended, 33 U.S. Code § 1251, et seq., (viii) the Oil Pollution Act, as amended, 33
U.S.C. § 2701, et seq., (ix) California Health & Safety Code § 25100, et seq. (Hazardous
Waste Control), (x) the Hazardous Substance Account Act, as amended, Health & Safety
Code § 25300, et seq., (xi) the Unified Hazardous Waste and Hazardous Materials
Management Regulatory Program, as amended, Health & Safety Code § 25404, et seq.,
(xii) Health & Safety Code § 25531, et seq. (Hazardous Materials Management), (xiii) the
California Safe Drinking Water and Toxic Enforcement Act, as amended, Health & Safety
Code § 25249.5, et seq., (xiv) Health & Safety Code § 25280, et seq. (Underground
Storage of Hazardous Substances), (xv) the California Hazardous Waste Management
Act, as amended, Health & Safety Code § 25170. 1, et seq., (xvi) Health & Safety Code §
25501, et seq., (Hazardous Materials Response Plans and Inventory), (xvii) Health &
Safety Code § 18901, et seq. (California Building Standards), (xviii) the Porter -Cologne
Water Quality Control Act, as amended, California Water Code § 13000, et seq., (xix)
California Fish and Game Code §§ 5650-5656, (xx) the Polanco Redevelopment Act, as
amended, Health & Safety Code § 33459, et seq., (xxi) Health & Safety Code § 25403, el
seq. (Hazardous Materials Release Cleanup), and (xxii) any other federal, state or local
laws, ordinances, rules, regulations, court orders or common law related in any way to the
protection of the environment, health or safety.
"Escrow" is defined in Section 2.7.
"Escrow Agent" means First American Title Insurance Company.
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"Exceptions" is defined in Section 2.10.
"Executive Director" means the Executive Director of the Successor Agency.
"Final Completion" or "Finally Complete" shall be deemed to have occurred
when a temporary certificate of occupancy has been issued for the Project by City.
"Final Master Environmental Impact Report for the Old Town Newhall
Specific Plan" or "FEIR" is defined in Recital G. m
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"FIRPTA" is defined in Section 1.2(1)(f).
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"Grant Deed" means the grant deed for the conveyance of the Theatre Property
from City and Successor Agency to Developer to be executed and recorded at Closing
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substantially in the form attached hereto as Exhibit D and incorporated herein by this N
reference.
"Hazardous Materials" means any substance, material, or waste which is or
becomes regulated by any local governmental authority, the State of California, or the
United States Government under any Environmental Laws, including any material or
substance which is defined as "hazardous," "extremely hazardous," "hazardous waste,"
"extremely hazardous waste," "restricted hazardous waste," "hazardous substance" or
"hazardous material" under any Environmental Laws, including petroleum, or any fraction
thereof, friable asbestos, and polychlorinated biphenyls.
"Housing Successor" means the City of Santa Clarita, successor to the housing
assets and functions previously performed by the Redevelopment Agency of the City of
Santa Clarita, pursuant to Health and Safety Code §34176.
"Initial Litigation Challenge" is defined in Section 6.20.
"Initial Site Preparation for the Project" shall mean the demolition of existing
improvements located on, and grading of, the Theatre Property preparatory to the
development of the Project in accordance with the Conceptual Project Plans as may be
modified by the Project Approvals, and installation of perimeter construction fencing on
the Theatre Property.
"Joint Condition Precedent" is defined in Section 2.3.
"Long Range Property Management Plan" or "LRPMP" is defined in Recital B.
"Mixed Use Developer" means Old Town -Main, LLC, a California limited liability
company.
"Mixed Use Property" means that portion of the Old Town Newhall Property
excluding the Parking Parcel and Theatre Property and depicted in Exhibit K as Parcel 1.
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"Mixed Use PSA" means that certain Purchase and Sale Agreement dated
2016, by and between Successor Agency and Mixed Use Developer,
governing the Mixed Use Property.
"Municipal Code" means the Santa Clarita Municipal Code.
"Notice" means a written notice in the form prescribed by Section 6.1.
"Office/Retail Component" is defined in Recital F.
"Old Town Newhall Property" is defined in Recital A and legally described in
Fuhihit A
"Operating Covenant Grant" is defined in Section 3.6.
"Operating Covenant Grant Escrow Agreement" is set forth in more particularity
in Exhibit J attached hereto and incorporated herein by this reference.
"Organizational Documents" is defined in Section 1.2(3)(a).
"Outside Date" is March 31, 2018.
"Oversight Board" is defined in Recital B.
"Parking Parcel" is described in Section 4.9 and more particularly depicted in
Exhibit K as "Parcel 3 -Parking".
"Parking Project" is defined in Section 4.9.
"Parties" means the City, Successor Agency and Developer.
"Party" means the City, Successor Agency or Developer.
"Permit Fee Grant" is defined in Section 3.6.
"Permitted Transfer" is defined in Section 1.3(3).
"Project" is defined in Recital F.
"Project Agreements" means this Agreement, the Theatre Operating Covenant
(Exhibit C), the Grant Deed (Exhibit D), the Assignment and Assumption Agreement
(Exhibit F), the Quitclaim Deed -Final Completion (Exhibit G-1), the Right of Entry Permit
(Exhibit H) and the Quitclaim Deed -Close of Escrow (Exhibit G-2).
"Project Approvals" is defined in Recital H.
"Property Claims" is defined in Section 2.17.
"Purchase Price" is defined in Section 2.2.
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"Quitclaim Deed -Close of Escrow" is described in Section 2.5, to be executed
and recorded at Close of Escrow, and substantially in the form attached hereto as Exhibit
GG=2 and incorporated herein by this reference.
"Quitclaim Deed -Final Completion" is described in Section 5.4(3), to be
executed and recorded upon Final Completion, and substantially in the form attached
hereto as Exhibit G-1 and incorporated herein by this reference.
"Reports" is defined in Section 2.13.
"Request to Resolve Dispute" is defined in Section 5.2(1).
"Right of Entry Permit" is that certain Right of Entry Permit entered into between
Successor Agency and Developer as of the Date of Agreement, providing Developer
access to the Theatre Property for purposes of undertaking certain investigative activities
as more particularly described in the form attached hereto as Exhibit H and incorporated
herein by this reference.
"Schedule of Performance" means the Schedule of Performance attached hereto
as Exhibit E and incorporated herein by this reference, setting out the dates and/or time
periods by which certain obligations set forth in this Agreement must be accomplished.
"Site Condition" is defined in Section 2.15.
"Site Preparation Costs" is defined in Section 3.6(2).
"Site Preparation Grant" is defined in Section 3.6.
"Site Preparation Grant Draw Request" is defined in Section 3.6(2) and set forth
in more particularity in Exhibit B to the Site Preparation Grant Escrow Agreement.
"Site Preparation Grant Disbursement Approval Notice" is defined in Section
3.6(2) and set forth in more particularity in Exhibit C to the Site Preparation Grant Escrow
Agreement.
"Site Preparation Grant Escrow Agreement" is set forth in more particularity in
Exhibit I attached hereto and incorporated herein by this reference.
"Sources and Uses" is defined in Section 3.7.
"Specific Plan" is defined in Recital F.
"Substantial Completion" or "Substantially Complete" shall be deemed to have
occurred when (i) Developer has provided adequate evidence to the City Manager that
eighty five percent (85%) of the contract price for the construction of the Project (including
all change orders) has been expended and (ii) the life safety systems within the Project
have been installed and are fully functional.
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"Successor Agency" means the Successor Agency to the former Redevelopment
Agency of the City of Santa Clarita, a public entity.
"Successor Agency Conditions Precedent" is defined in Section 2.4.
"Successor Agency Parties" and "Successor Agency Party" are defined in
Section 2.14.
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"Successor Agency's Actual Knowledge" or words to such effect, shall mean m
the present, actual knowledge of Thomas Cole, the City's Director of Community
Development, Jason Crawford, Manager of Economic Development and Marketing, and E
Denise Covert, Economic Development Associate, excluding constructive knowledge or c
duty of inquiry, existing as of the Date of Agreement.
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"Theatre Component" is defined in Recital F.
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"Theatre Development Grant" is defined in Recital E and described in more Lo
particularity in Section 3.6. i
"Theatre ENA" is defined in Recital D.
"Theatre Operating Covenant" is defined in Recital E and set forth in more
particularity in Exhibit C attached hereto and incorporated herein by this reference.
"Theatre Property" is defined in Recital E and more particularly depicted in Exhibit
K as "Parcel 2"..
"Theatre Property Acquisition Grant" is defined in Section 3.6.
"Theatre Property Certificate of Compliance" is defined in Recital E.
"Title Company" means First American Title Company.
"Title Policy" is defined in Section 2.11.
"Title Reports" is defined in Section 2.10.
"Transfer" means any assignment or transfer of this Agreement or the Theatre
Property or any portion thereof or any interest therein and as further defined in Section
1.3(2).
"UC" is defined in Recital G.
"Unexpended Permit Fee Grant" is defined in Section 3.6.
"Unrecorded Agreements" is defined in Section 2.13.
"UST" is defined in Section 2.15.
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"UST Removal Construction" is defined in Section 2.15.
"UST Removal Regulatory Approval" is defined in Section 2.15.
"UST Removal Work" is defined in Section 2.15.
1.2 Representations and Warranties.
(1) Successor Agency Representations and Warranties. Successor
Agency represents and warrants to Developer as follows:
(a) Authority. Successor Agency is a public entity with full right,
power and lawful authority to perform its obligations hereunder, and the execution,
delivery, and performance of this Agreement by Successor Agency has been fully
authorized by all requisite actions on the part of the Successor Agency.
(b) No Conflict. Successor Agency's execution, delivery and
performance of its obligations under this Agreement will not constitute a default or a
breach under any contract, agreement or order to which Successor Agency is a party or
by which Successor Agency is bound.
(c) No Litigation or Other Proceeding. Except as provided in
Recital I, to Successor Agency's Actual Knowledge, no litigation or other proceeding
(whether administrative or otherwise) is outstanding or has been threatened which would
prevent, hinder or delay the ability of Successor Agency to perform its obligations under
this Agreement, or that would adversely affect the Theatre Property or the ability of
Developer to develop the same as contemplated by this Agreement.
(d) Right to Possession. No person or entity other than
Successor Agency has the right to use, occupy, or possess the Theatre Property or any
portion thereof. Excepting the use prior to Closing of all or a portion of the Theatre
Property for public parking and occasional use as a farmer's market and other City
sponsored events or activities, and the terms of a right of entry agreement to be entered
into pursuant to the terms of the Mixed Use PSA relative to the UST Removal Work,
Successor Agency shall not enter into any lease or other agreement respecting use,
occupancy, or possession of the Theatre Property or any portion thereof without the
written consent of Developer. The foregoing notwithstanding, on no less than 48 hours
prior notice from Developer, Successor Agency shall provide the Theatre Property to
Developer free of any use, occupancy or possession by any person or entity, excepting
ongoing activities related to the UST Removal Work, in order for Developer to undertake
activities contemplated by this Agreement. Furthermore, Successor Agency shall deliver
the Theatre Property to Developer free of any use, occupancy or possession by any
person or entity prior to Closing and neither Successor Agency nor City shall have any
right thereafter to use any portion of the Theatre Property for public parking, farmer's
market or any other use.
(e) Condition of Theatre Property. Successor Agency has no
notice of any pending or threatened action or proceeding arising out of the condition of the
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Theatre Property or any alleged violation of any Environmental Laws. Except as
otherwise disclosed by Documents provided by Successor Agency to Developer and the
results of Developer's independent investigation of the Theatre Property pursuant to
Section 2.15, to Successor Agency's Actual Knowledge, the Theatre Property is in
compliance with all Environmental Laws.
(f) FIRPTA. The Successor Agency is not a "foreign person"
within the parameters of the Foreign Investment In Real Property Tax Act of 1980 c
("FIRPTA") or any similar state statute, or is otherwise exempt from the provisions of m
FIRPTA or any similar state statute, or has otherwise complied with and will comply with
all the requirements of FIRPTA or any similar state statute. a
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(g) Compliance With Laws. Other than as disclosed by the w
Documents, the Successor Agency has received no notice and has no Actual Knowledge w
of any violation of Applicable Laws of any governmental agency, body or subdivision
affecting or relating to the Theatre Property that would materially, adversely affect the 00
Successor Agency's ability to convey the Theatre Property or Developer's ability to
construct or operate the Project, or any portion thereof.
(h) Condemnation. The Successor Agency has no Actual
Knowledge of any pending or threatened proceedings in eminent domain or otherwise
with respect to the Theatre Property that would materially, adversely affect the Successor
Agency's ability to convey the Theatre Property or Developer's ability to construct or
operate the Project, or any portion thereof.
Until the recording of the Quitclaim Deed -Final Completion pursuant
to Section 5.4(3) or earlier termination of this Agreement, Successor Agency shall, upon
learning of any fact or condition which would cause any of the warranties and
representations in this Section 1.2(1) not to be true, immediately give written Notice of
such fact or condition to Developer. The foregoing representations and warranties shall
survive Closing and continue until recording of the Quitclaim Deed -Final Completion
pursuant to Section 5.4(3).
(2) City Representations and Warranties. City represents and warrants
to Developer as follows:
(a) Authority. City is a California municipal corporation with full
right, power and lawful authority to perform its obligations hereunder, and the execution,
delivery, and performance of this Agreement by City has been fully authorized by all
requisite actions on the part of the City Council.
(b) No Conflict. City's execution, delivery and performance of its
obligations under this Agreement will not constitute a default or a breach under any
contract, agreement or order to which City is a party or by which City is bound.
(c) No Litigation or Other Proceeding. Except as provided in
Recital I, to City's Actual Knowledge, no litigation or other proceeding (whether
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administrative or otherwise) is outstanding or has been threatened which would prevent,
hinder or delay the ability of City to perform its obligations under this Agreement.
Until the recording of the Quitclaim Deed -Final Completion pursuant to Section
5.4(3) or earlier termination of this Agreement, City shall, upon learning of any fact or
condition which would cause any of the warranties and representations in this Section
1.2(2) not to be true, immediately give written Notice of such fact or condition to
Developer. The foregoing representations and warranties shall survive Closing and
continue until recording of the Quitclaim Deed -Final Completion pursuant to Section
5.4(3).
(3) Developer's Representations and Warranties. Developer represents
and warrants to Successor Agency and City as follows:
(a) Authority. Developer is a California limited liability company
duly organized in the State of California and qualified to do business and in good standing
under the laws of the State of California. Prior to execution of this Agreement, Developer
has provided to Successor Agency and City its Articles of Incorporation, By -Laws, and
Operating Agreement ("Organizational Documents"). The Organizational Documents
provided by Developer to Successor Agency and City are true and complete copies of the
originals, as may be amended from time to time. Developer has full right, power and
lawful authority to undertake all of its obligations hereunder and the execution,
performance and delivery of this Agreement by Developer has been fully authorized by all
requisite company actions on the part of Developer.
(b) No Conflict. Developer's execution, delivery and
performance of its obligations under this Agreement will not constitute a default or a
breach under any contract, agreement or order to which Developer or any Principal is a
party or by which Developer or any Principal is bound.
(c) No Litigation or Other Proceeding. To Developer's current
actual knowledge, no litigation or other proceeding (whether administrative or otherwise)
is outstanding or has been threatened which would prevent, hinder or delay the ability of
Developer to perform its obligations under this Agreement.
(d) No Developer Bankruptcy. Developer is not the subject of any
bankruptcy proceeding, and no general assignment or general arrangement for the
benefit of creditors or the appointment of a trustee or receiver to take possession of all or
substantially all of Developer's assets has been made.
Until the recording of the Quitclaim Deed -Final Completion pursuant
to Section 5.4(3) or earlier termination of this Agreement, Developer shall, upon learning
of any fact or condition which would cause any of the warranties and representations in
this Section 1.2(3) not to be true, immediately give written Notice of such fact or condition
to Successor Agency and City. The foregoing representations and warranties shall
survive Closing and continue until recording of the Quitclaim Deed -Final Completion
pursuant to Section 5.4(3).
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1.3 Change in Ownership, Management and Control of Developer. The
qualifications and identity of Developer are of particular concern to Successor Agency
and City. It is because of those unique qualifications and identity that Successor Agency
and City have entered into this Agreement with Developer.
(1) Until Final Completion of Prosect. Until Final Completion of the
Project, Developer shall not Transfer the Theatre Property or any portion of this
Agreement, without the express written consent of Successor Agency and City which may
be granted or denied in their sole discretion. After Final Completion of the Project,
Developer may Transfer the Theatre Property subject to the terms of the Theatre
Operating Covenant.
(2) Additional Matters. Except for Permitted Transfers as provided in
Section 1.3(3), the term "Transfer" for the purposes of this Agreement shall include any
significant change in the Control of Developer by any method or means. The term
"Control" as used in the immediately preceding sentence and Sections 1.3(3)(b), 1.3(3)(f)
and 1.3(4) below, shall mean the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of an entity or a person whether
through the ownership of voting securities, by contract or otherwise.
(3) Permitted Transfers. Notwithstanding any other provision of this
Agreement to the contrary, each of following Transfers are permitted and shall not require
Successor Agency or City consent under this Section 1.3 (each, a "Permitted Transfer"):
(a) Any lien or encumbrance on the Theatre Property to secure
the funds necessary for acquisition of the Theatre Property or for the construction
financing of the Project;
(b) An assignment of this Agreement to an Affiliate of Developer,
provided that Developer's Principal retains Control, directly or indirectly, in such Affiliate;
(c) Permanent financing of the Project following its Substantial
Completion as provided in Section 3.14(1) to the extent said lien or encumbrance does
not exceed 75% of the value of the Theatre Property and Project as determined by a
lender's appraisal (provided that if such lender is not an institution, then such appraisal
shall be subject to the reasonable approval of the City);
(d) Dedications and grants of easements and rights of way
required in accordance with the Project Approvals;
(e) The leasing of the Theatre Property or portion thereof to an
Affiliate of Developer or third -party tenants, for uses permitted by this Agreement, the
Project Approvals, and Applicable Laws;
(f) Admission of new or additional equity partners provided that
Developer' Principal retains Control, directly or indirectly, in Developer.
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(4) Subsequent Equity Transfers. Until Final Completion of the Project,
any proposed admission of new equity partner(s) resulting in a change in Control of
Developer shall be subject to the prior review and approval by the City Manager and/or
Executive Director, which approval may be withheld, conditioned or delayed in the City
Manager's and/or Executive Director's sole discretion. After Final Completion of the
Project, Developer may Transfer the Theatre Property or interest in Developer subject to
the terms of the Theatre Operating Covenant.
2. PURCHASE AND SALE.
2.1 Purchase and Sale of Theatre Property. Subject to the terms, covenants
and conditions of this Agreement, Developer shall purchase from Successor Agency, and
Successor Agency shall sell to Developer the Theatre Property.
2.2 Purchase Price; Deposit. The total purchase price for the Theatre Property
shall be equal to the sum of FOUR HUNDRED FORTY THOUSAND FIVE HUNDRED
TWENTY FIVE AND 00/100 Dollars ($440,525.00) ("Purchase Price").
Concurrent with the opening of Escrow in accordance with Section 2.7, Developer shall
deposit TWENTY THOUSAND AND 00/100 Dollars ($20,000.00) into Escrow with the
Escrow Agent ("Deposit"). At Closing Developer shall be entitled to a refund of the
Deposit, together with interest earned thereon, if any. In the event that this Agreement is
terminated prior to Closing and Developer is not in Default as provided in this Agreement,
Developer shall be entitled to a refund of the Deposit, together with interest earned
thereon, if any.
2.3 Joint Condition Precedent. Successor Agency's obligation to proceed with
the disposition of the Theatre Property to Developer, City's obligation to proceed with
funding the acquisition of the Theatre Property from Successor Agency on behalf of
Developer and to release its beneficial interest in the Theatre Property, and Developer's
obligation to proceed with the acquisition of the Theatre Property from the Successor
Agency pursuant to the terms of this Agreement and Project Agreements, is subject to the
approval of this Agreement by the Oversight Board prior to Closing, which neither
Successor Agency, City or Developer may waive ("Joint Condition Precedent").
2.4 Successor Agency Conditions Precedent. Successor Agency's obligation
to proceed with the disposition of the Theatre Property to Developer pursuant to the terms
of this Agreement is subject to the fulfillment or waiver by Successor Agency of each and
all of the conditions precedent described below ("Successor Agency Conditions
Precedent"). The Successor Agency Conditions Precedent are solely for the benefit of
Successor Agency and shall be fulfilled or waived within the time periods provided for
herein, and in any event, no later than the Outside Date.
(1) No Default. Developer shall not be in Default under this Agreement.
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(2) Execution and Delivery of Documents by Developer and Escrow
Agent. Developer shall have executed and acknowledged (as necessary) the Grant
Deed, Assignment and Assumption Agreement, Theatre Operating Covenant, Site
Preparation Grant Escrow Agreement, and Operating Covenant Grant Escrow
Agreement, and Developer shall have executed (and, where appropriate,
acknowledged), and delivered into Escrow all other documents that Developer is required
to deliver into Escrow pursuant to Section 2.9(1). Escrow Agent shall have executed the
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Site Preparation Grant Escrow Agreement and Operating Covenant Grant Escrow
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Agreement.
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(3) Delivery of Funds. In connection with the Closing, City shall have
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delivered through Escrow a sum equal to the Purchase Price. Developer shall have
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delivered through Escrow such funds, if any, including escrow costs, recording fees and
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other closing costs as are necessary to comply with its obligation under this Agreement.
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(4) Sources and Uses. Successor Agency shall have approved the
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Developer's Sources and Uses pursuant to Section 3.7.
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(5) Evidence of Available Funds.
(a) Closing. Successor Agency shall have received from
Developer reasonable evidence that Developer has, or subject to Closing, will have,
100% of Project development and construction costs, as identified in the Sources and
Uses, in ready and available funds (which may be Developer's own funds and/or third
party equity or debt financing proceeds).
(b) Developer expressly acknowledges that Closing will not occur
unless and until the condition above has been satisfied.
(6) Equity Funding/Construction Loan. Developer shall have delivered
evidence satisfactory to Successor Agency in its reasonable discretion that the equity
commitments or acquisition and/or construction loan, if any, for Closing, described in the
Sources and Uses, shall have closed or (if not from the Developer's Principal or an
Affiliate of Developer) shall be ready to close concurrently with the Closing.
(7) Prosect Construction Permits. Developer shall have submitted
complete applications to City for all demolition, grading and building permits necessary
for Developer to develop and construct the Project, and such permit applications shall
have been reviewed and approved by City and shall be ready to be issued by the City.
(8) Project Approvals. The Project Approvals shall be final and
non -appealable, and if any appeals, legal challenges, requests for rehearing, or
referenda have been filed or instituted, such appeals, legal challenges, requests for
rehearing, or referenda shall have been fully and finally resolved in a manner acceptable
to Successor Agency in its sole and absolute discretion, and such that no further appeals,
legal challenges, requests for rehearing, or referenda are possible.
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(9) Insurance Policies. Developer shall have submitted to Successor
Agency evidence that the insurance policies required by Section 3.8 have either been
issued or will be ready to issue prior to Commencement of Construction.
(10) Site Condition. Mixed Use Developer shall have completed the UST
Removal Work and Developer shall have accepted or waived in accordance with Section
2.15 the Site Condition.
(11) Old Town Newhall Parking Prosect. City shall have acquired fee title
to the Parking Parcel or demonstrated to Successor Agency to its reasonable satisfaction
that City will acquire fee title to the Parking Parcel prior to or concurrently with the Closing
of the Theatre Property. City shall also have awarded a contract to a design -build
contractor for the design and construction of the Parking Project pursuant to California
Public Contract Code Section 22160 et.seq, which may be conditioned on Closing of the
Theatre Property as provided by Section 4.9 below. City and Mixed Use Developer shall
have approved, executed and recorded prior to or concurrently with the Closing of the
Theatre Property an easement for vehicular ingress and egress from the Mixed Use
Property over and across the Parking Parcel to the public right away along Railroad
Avenue and 9t" Street.
2.5 City Conditions Precedent. City's obligation to proceed with the financial
assistance to Developer pursuant to the terms of this Agreement, and to quitclaim and
release its beneficial interest in the Theatre Property as described in Recital B pursuant to
the Quitclaim Deed -Close of Escrow (Exhibit G-2), is subject to the fulfillment or waiver by
City of each and all of the conditions precedent described below ("City Conditions
Precedent"). The City Conditions Precedent are solely for the benefit of City and shall be
fulfilled or waived within the time periods provided for herein, and in any event, no later
than the Outside Date.
(1) No Default. Developer shall not be in Default under this Agreement.
(2) Execution and Delivery of Documents by Developer and Escrow
Agent. Developer shall have executed and acknowledged (as necessary) the Grant
Deed, Assignment and Assumption Agreement, Theatre Operating Covenant, Site
Preparation Grant Escrow Agreement and Operating Covenant grant Escrow Agreement,
and Developer shall have executed (and, where appropriate, acknowledged), and
delivered into Escrow all other documents that Developer is required to deliver into
Escrow pursuant to Section 2.9(1). Escrow Agent shall have executed the Site
Preparation Grant Escrow Agreement and Operating Covenant Grant Escrow
Agreement.
(3) Delivery of Funds. In connection with the Closing, Developer shall
have delivered through Escrow such funds, including escrow costs, recording fees and
other closing costs as are necessary to comply with Developer's obligations under this
Agreement.
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(4) Sources and Uses. City shall have approved the Developer's
Sources and Uses pursuant to Section 3.7.
(5) Evidence of Available Funds.
(a) Closing. City shall have received from Developer reasonable
evidence that Developer has, or subject to Closing, will have, 100% of Project
development and construction costs, as identified in the Sources and Uses, in ready and
available funds (which may be Developer's own funds and/or third party equity or debt
financing proceeds).
(b) Developer expressly acknowledges that Closing will not occur
unless and until the condition above has been satisfied.
(6) Equity Funding/Construction Loan. Developer shall have delivered
evidence satisfactory to City in its reasonable discretion that the equity commitments
and/or construction loan, if any, for Closing, described in the Sources and Uses, shall
have closed or (if not from the Developer's Principal or an Affiliate of Developer) shall be
ready to close concurrently with the Closing.
(7) Prosect Construction Permits. Developer shall have submitted
complete applications to City for all demolition, grading and building permits necessary
for Developer to develop and construct the Project, and such permit applications shall
have been reviewed and approved by City and shall be ready to be issued by the City.
(8) Project Approvals. The Project Approvals shall be final and
non -appealable, and if any appeals, legal challenges, requests for rehearing, or
referenda have been filed or instituted, such appeals, legal challenges, requests for
rehearing, or referenda shall have been fully and finally resolved in a manner acceptable
to City in its sole and absolute discretion, and such that no further appeals, legal
challenges, requests for rehearing, or referenda are possible.
(9) Insurance Policies. Developer shall have submitted to City evidence
that the insurance policies required by Section 3.8 have either been issued or will be
ready to issue prior to Commencement of Construction.
(10) Old Town Newhall Parking Project. City shall have acquired fee title
to the Parking Parcel or will acquire fee title to the Parking Parcel prior to or concurrently
with the Closing of the Theatre Property. City shall also have awarded a contract to a
design -build contractor for the design and construction of the Parking Project pursuant to
California Public Contract Code Section 22160 et.seq, which may be conditioned on
Closing of the Theatre Property as provided by Section 4.9 below. City and Mixed Use
Developer shall have approved, executed and recorded prior to or concurrently with the
Closing of the Theatre Property an easement for vehicular ingress and egress from the
Mixed Use Property over and across the Parking Parcel to the public right away along
Railroad Avenue and 9t" Street.
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(11) Site Condition. Mixed Use Developer shall have completed the UST
Removal Work and Developer shall have accepted or waived in accordance with Section
2.15 the Site Condition.
2.6 Developer Conditions Precedent. Developer's obligation to proceed with
the acquisition of Theatre Property from Successor Agency pursuant to the terms of this
Agreement is subject to the fulfillment or waiver by Developer of each and all of the
conditions precedent described below ("Developer Conditions Precedent"). The c
Developer Conditions Precedent are solely for the benefit of Developer and shall be m
fulfilled or waived, if applicable, within the time periods provided for herein, and in any
event, no later than the Outside Date. For avoidance of any doubt, if any of the Developer a
Conditions Precedent or Joint Condition Precedent is not satisfied or waived for any s
reason, then Developer shall have the right to terminate this Agreement, in which case w
the Deposit, together with interest earned thereon, if any, shall be returned to Developer. V
(1) No Default by Successor Agency and City. Successor Agency and 00
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City shall not be in Default under this Agreement.
(2) Execution and Delivery of Documents by Successor Agency, City
and Escrow Agent. Successor Agency shall have executed and acknowledged the Grant
Deed and Assignment and Assumption Agreement, and Successor Agency shall have
executed (and, where appropriate, acknowledged) and delivered into Escrow all other
documents that Successor Agency is required to deliver into Escrow pursuant to
Section 2.9(2). City shall have executed and acknowledged (as necessary) the
Assignment and Assumption Agreement, Theatre Operating Covenant, Site Preparation
Grant Escrow Agreement, Operating Covenant Grant Escrow Agreement, Quitclaim
Deed -Close of Escrow, and Quitclaim Deed -Final Completion, and City shall have
delivered these documents into Escrow pursuant to Section 2.9(3). Escrow Agent shall
have executed the Site Preparation Grant Escrow Agreement and Operating Covenant
Grant Escrow Agreement.
(3) Delivery of Funds. In connection with the Closing, City shall have
delivered through Escrow a sum equal to the Purchase Price, a sum equal to the Site
Preparation Grant, and a sum equal to the Operating Covenant Grant. The Site
Preparation Grant shall be subject to the instructions set forth in the Site Preparation
Grant Escrow Agreement. The Operating Covenant Grant shall be subject to the
instructions set forth in the Operating Covenant Grant Escrow Agreement.
(4) Prosect Approvals. The Project Approvals shall be (a) final and
non -appealable, and if any appeals, legal challenges, requests for rehearing, or
referenda have been filed or instituted, such appeals, legal challenges, requests for
rehearing, or referenda shall have been fully and finally resolved in a manner acceptable
to Developer in its sole and absolute discretion, and such that no further appeals, legal
challenges, requests for rehearing, or referenda are possible, and (b) approved (including
without limitation, all conditions associated therewith) by Developer in its sole and
absolute discretion.
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(5) Project Construction Permits. City shall have reviewed and
approved the demolition, grading and building permit applications necessary for
Developer to develop and construct the Project, and City shall be ready to issue said
permits.
(6) Title Policy. Developer shall have approved the condition of title in
accordance with Section 2.10 and the Title Company shall, upon payment of Title
Company's regularly scheduled premium, be irrevocably committed to issue the Title
Policy upon recordation of the Grant Deed subject only to the Approved Condition of Title.
(7) Equity Funding/Construction Loan. Developer shall have secured all
necessary equity commitments and construction loans, if any, for 100% of Project
development and construction costs as identified in the Sources and Uses, and shall
have closed or shall be ready to close concurrently with Closing.
(8) Absence of Proceedings. There shall be an absence of any
condemnation, environmental or any other pending governmental, administrative or legal
proceeding with respect to the Theatre Property which would materially and adversely
affect Developer's intended uses of the Theatre Property, the development of the Project,
or value of the Theatre Property.
(9) No Material Adverse Change. There shall not have occurred
between the Date of Agreement and the Closing a material adverse change to the
physical, environmental or title condition of the Theatre Property.
(10) No Leases or Parties in Possession. Successor Agency shall have
demonstrated to Developer the ability to deliver fee title to the Theatre Property to
Developer free and clear of any tenants, lessees, licensees or any third party occupants
or parties in possession, and executed the Title Company's standard form Commercial
Owner's Affidavit as required by Section 2.9(2)(e) below.
(11) Site Condition. Developer shall have accepted or waived in
accordance with Section 2.15 the Site Condition.
(12) Old Town Newhall Parking Project. City shall have acquired fee title
to the Parking Parcel or demonstrated to Developer to its reasonable satisfaction that City
will acquire fee title to the Parking Parcel prior to or concurrently with the Closing of the
Theatre Property. City shall also have awarded a contract to a design -build contractor for
the design and construction of the Parking Project pursuant to California Public Contract
Code Section 22160 et.seq., which may be conditioned on Closing of the Theatre
Property as provided by Section 4.9 below. City and Mixed Use Developer shall have
approved, executed and recorded prior to or concurrently with the Closing of the Theatre
Property an easement for vehicular ingress and egress from the Mixed Use Property over
and across the Parking Parcel to the public right away along Railroad Avenue and 9t"
Street.
(13) Mixed Use Property Easement. Developer shall have acquired an
easement over the Mixed Use Property, prior to or concurrently with the Closing of the
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Theatre Property, for ingress and egress and utilization of the plaza/courtyard area
thereof.
2.7 Escrow. Within three (3) calendar days of the Date of Agreement, the
Parties shall open an escrow with Escrow Agent for the conveyance of the Theatre
Property to Developer ("Escrow").
(1) Costs of Escrow. Escrow Agent shall charge: (i) Developer for the
following: the recording cost of the Grant Deed and other closing documents, the
incremental excess cost in the premium for an ALTA extended coverage title policy, the
cost of endorsements requested by Developer, if any, and one half of the escrow fees
charged by the Escrow Agent; and (ii) Successor Agency for one half of escrow fees
charged by Escrow Agent, the cost of the CLTA title policy, Successor Agency's share of
prorations and all documentary transfer taxes, if any. Successor Agency shall take all
actions and pay all charges and costs (if any) required by Section 2.10 and 2.11.
(2) Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Developer, Successor Agency and City with respect to the conveyance of
the Theatre Property to Developer, and the Escrow Agent to whom these instructions are
delivered is hereby empowered to act under this Agreement. Insurance policies for fire or
casualty are not to be transferred. Except as otherwise provided by the terms of the Site
Preparation Grant Escrow Agreement as to the Site Preparation Grant, and the Operating
Covenant Grant Escrow Agreement as to the Operating Covenant Grant, all funds
received in the Escrow shall be deposited in interest-bearing accounts for the benefit of
the depositing Party in any state or national bank doing business in the State of California.
All disbursements shall be made by check or wire transfer from such accounts. If, in the
opinion of either Party, it is necessary or convenient in order to accomplish the Closing,
such Party may provide supplemental escrow instructions; provided that if there is any
inconsistency between this Agreement and the supplemental escrow instructions, then
the provisions of this Agreement shall control. The Closing shall take place as set forth in
Section 2.8 below. Escrow Agent is instructed to release Successor Agency's, City's and
Developer's escrow closing statements to the respective Parties.
(3) Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
(a) Pay and charge Developer for the incremental excess cost of
the premium of an ALTA Title Policy, including any endorsements requested by
Developer, and pay and charge Successor Agency for the cost of the premium for a CLTA
Title Policy.
(b) Pay and charge Developer and Successor Agency for escrow
fees, charges, and costs as provided in Section 2.7(1).
(c) Disburse the Purchase Price less Successor Agency's share
of costs of Escrow as provided in Section 2.7(3)(g) below and record the Grant Deed,
Quitclaim Deed -Close of Escrow, and Assignment and Assumption Agreement when the
Joint Condition Precedent, Developer Conditions Precedent, Successor Agency
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Conditions Precedent and City Conditions Precedent have been fulfilled or waived in
writing by Developer, Successor Agency and City, as applicable. Immediately following
recordation of the Grant Deed, Escrow Agent shall first record the Quitclaim Deed -Close
of Escrow, then the Assignment and Assumption Agreement and thereafter any other
recordable documents delivered into Escrow for the Closing.
(d) Do such other actions as necessary, including obtaining and
issuing the Title Policy, to fulfill its obligations under this Agreement. c
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(e) Direct Successor Agency, City and Developer to execute and w
deliver any instrument, affidavit, and statement, and to perform any act, reasonably E
necessary to comply with the provisions of FIRPTA, if applicable, and any similar state act o
and regulations promulgated thereunder. w
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(f) Prepare and file with all appropriate governmental or taxing W
authorities uniform settlement statements, closing statements, tax withholding forms 00
including IRS 1099-S forms, and be responsible for withholding taxes, if any such forms Lo
are provided for or required by law.
(g) Disburse the Purchase Price less Successor Agency's share
of costs of Escrow in accordance with instructions to be provided by City and Successor
Agency.
(h) Deposit the Site Preparation Grant delivered into Escrow by
City into an interest bearing account for the benefit of City in any state or national bank
doing business in the State of California and disburse said funds to Developer in
accordance with the terms and provisions of the Site Preparation Grant Escrow
Agreement.
(i) Deposit the Operating Covenant Grant delivered into Escrow
by City into an interest bearing account for the benefit of City in any state or national bank
doing business in the State of California and disburse said funds to Developer in
accordance with the terms and provisions of the Operating Covenant Grant Escrow
Agreement.
(j) Upon disbursement of the Operating Covenant Grant to
Developer in accordance with the Operating Covenant Grant Escrow Agreement, Escrow
Agent shall record the Theatre Operating Covenant and Quitclaim Deed -Final
Completion in the Official Records of the County of Los Angeles.
2.8 Closing. The Escrow for conveyance of the Theatre Property shall close
("Close of Escrow") on a date agreed upon by the Parties that is within 30 days after the
satisfaction, or waiver by the appropriate Party, of the Joint Condition Precedent, all of the
Successor Agency Conditions Precedent, all of the City's Conditions Precedent, and all of
the Developer Conditions Precedent, which shall occur in no event later than the Outside
Date. If Closing does not occur on or before the Outside Date, then this Agreement shall
automatically terminate; provided, however, that the Outside Date may be extended by
mutual agreement of the Parties, each in its sole discretion in accordance with Section 6.2
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below. For purposes of this Agreement, "Closing" shall mean the time and day the Grant
Deed is recorded in the Official Records of the County of Los Angeles.
2.9 Delivery of Documents and Closing Funds.
(1) At or before Closing, Developer shall deposit into Escrow the
following items with respect to the Theatre Property:
(a) Funds in an amount necessary to consummate the Closing,
including the Escrow costs set forth in Section 2.7(1);
(b) one original executed and acknowledged Grant Deed;
(c) one original executed and acknowledged Assignment and
Assumption Agreement;
(d)
Covenant;
(e)
Agreement;
one original executed and acknowledged Theatre Operating
one original executed Site Preparation Grant Escrow
(f) one original executed Operating Covenant Grant Escrow
Agreement; and
(g) one original executed Preliminary Change of Ownership
Report for the Theatre Property.
(2) At or before Closing, Successor Agency shall deposit into Escrow
the following items with respect to the Theatre Property:
(a) one original executed and acknowledged Grant Deed;
(b) one original executed and acknowledged Assignment and
Assumption Agreement;
(c) one duly executed non -foreign certification for the Theatre
Property in accordance with the requirements of Section 1445 of the Internal Revenue
Code of 1986, as amended;
(d) one duly executed California Form 593-W Certificate for the
Theatre Property or comparable non -foreign person affidavit;
(e) one Commercial Owner's Affidavit in the standard form of the
Title Company; and
(f) any documents to be recorded as part of Developer's
financing of the Project which Successor Agency has approved in writing pursuant to
Section 3.7, along with a Request for Notice of Default executed by Successor Agency.
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(3) At or before Closing, City shall deposit into Escrow the following
items with respect to the Theatre Property:
(a) funds in an amount equal to the Purchase Price set forth in
Section 2.2;
(b) one original executed and acknowledged Assignment and
Assumption Agreement;
(c) one original executed and acknowledged Theatre Operating
Covenant;
(d) one original executed and acknowledged Quitclaim
Deed -Close of Escrow;
(e) one original executed and acknowledged Quitclaim
Deed -Final Completion;
(f) funds in the amount of the Site Preparation Grant as set forth
in Section 3.6 and one original executed Site Preparation Grant Escrow Agreement;
(g) funds in the amount of the Operating Covenant Grant as set
forth in Section 3.6 and one original executed Operating Covenant Grant Escrow
Agreement; and
(h) any documents to be recorded as part of Developer's
financing of the Project which City has approved in writing pursuant to Section 3.7, along
with a Request for Notice of Default executed by City.
(4) At Closing, Successor Agency, City and Developer shall each
deposit such other instruments as are reasonably required by the Title Company or
otherwise required to close the Escrow, issue the Title Policy and consummate the
conveyance of the Theatre Property in accordance with the terms hereof.
2.10 Review of Title. Successor Agency shall cause the Title Company to deliver
to the Developer a preliminary title report or reports (the "Title Report(s)") with respect to
the title to the Theatre Property, together with legible copies of the documents underlying
the exceptions ("Exceptions") set forth in the Title Reports, within thirty (30) days from
the date of approval of the Certificate of Compliance for the Theatre Property. Developer
shall have the right to reasonably approve or disapprove the Exceptions; provided,
however, that the Developer hereby approves the following Exceptions:
(1) The Redevelopment Plan,
(2) The lien of any non -delinquent property taxes and assessments (to
be prorated at Close of Escrow).
Developer shall have thirty (30) days from the date of its receipt of the Title Report, all
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Exceptions and the ALTA survey identified in Section 2.13, to give written notice to
Successor Agency and Escrow Agent of Developer's approval or disapproval of any of
such Exceptions set forth in the Title Report or ALTA survey, in its sole discretion.
Developer's failure to give written approval or disapproval of the Title Report within such
time limit shall be deemed Developer's disapproval of the Title Report. If Developer
notifies Successor Agency of its disapproval of any Exceptions in the Title Report,
Successor Agency shall have the right, but not the obligation, to remove any disapproved s
Exceptions within thirty (30) days after receiving written notice of Developer's disapproval c
or provide assurances satisfactory to Developer that such Exception(s) will be removed CO
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on or before the Closing. If Successor Agency cannot or does not elect to remove any of w
the disapproved Exceptions within that period, Developer shall have fifteen (15) days E
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after the expiration of such thirty (30) day period to either give Successor Agency written N
notice that Developer elects to proceed with the purchase of the Theatre Property subject 'w
to the disapproved Exceptions not removed by Successor Agency or to give Successor
Agency written notice that the Developer elects to terminate this Agreement. The
Exceptions to title to the Theatre Property approved by Developer as provided herein and N
a title policy in the form of a proforma of title policy (if any) obtained by Developer shall
hereinafter be referred to as the "Approved Condition of Title" of the Theatre Property. w
The Developer shall have the right to approve or disapprove any further Exceptions E
reported by the Title Company after the Developer has approved the condition of title for 2
the Theatre Property (which are not created by Developer) including without limitation, a
any and all new exceptions disclosed by a survey of the Theatre Property. Successor R
Agency shall not create any new exceptions to title following the date of this Agreement
without Developer's prior written consent. Notwithstanding the foregoing, the Successor V
Agency agrees to deliver fee title to the Theatre Property at the Closing free and clear of
all (a) tenants, licensees and third party occupants and all leases, rental agreements, N
license agreements and third party occupancy agreements, and (b) monetary liens,
deeds of trust, mechanics' liens and other liens and encumbrances (other than the lien for L
current real property taxes not yet due and payable), all of which shall be released from 2
the Theatre Property by Successor Agency at Successor Agency's sole expense on or a
before the Closing.
2.11 Title Insurance. Concurrently with recordation of the Grant Deed, the Title
Company shall issue to Developer such policy of title insurance for the Theatre Property,
which at Developer's option may be an ALTA extended coverage owner's policy (or if
requested by Developer a CLTA standard owner's policy of title insurance with survey
exceptions) (each, a "Title Policy") as may be required by Developer, and/or Developer's
lenders or other institutions that may be providing financing for the Project, together with
such endorsements as are reasonably requested by Developer and/or Developer's
lenders or other institutions, insuring that Developer has a valid fee ownership interest in
the Theatre Property, subject only to the Approved Condition of Title. The standard
premium for the standard coverage of a CLTA Title Policy shall be borne by Successor
Agency. Any additional costs related thereto (except for such costs to remove any title
exceptions agreed to be removed by the Successor Agency, which shall be at the
Successor Agency's sole cost), including the cost of surveys, the additional incremental
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cost of an ALTA Title Policy and any endorsements requested by Developer shall be paid
by Developer.
2.12 Property Taxes and Assessments. Ad valorem taxes and assessments
levied, assessed or imposed on the Theatre Property for any period prior to the Closing, if
any, shall be paid by Successor Agency. Ad valorem taxes and assessments levied,
assessed or imposed on the Theatre Property acquired by Developer or any other
improvements thereon, for the period after the Closing shall be paid by Developer.
2.13 Documents. Successor Agency and City represent and warrant that, to the
best of the Successor Agency's Actual Knowledge and City's Actual Knowledge,
respectively, as of the Date of Agreement, Successor Agency and City have furnished
Developer with copies to any and all material, existing surveys, inspection reports,
environmental and/or hazardous material reports, and any other data, reports, studies,
agreements, correspondence and otherwritings, including that certain Preliminary Report
issued by Title Company, Effective Date December 18, 2015, Order No. NHSC-5061853,
as may be subsequently amended and supplemented; Phase II Environmental
Assessment dated February 28, 2008, prepared by Atkins Environmental H.E.L.P., Inc.,
Geotechnical Engineering Investigation Report, dated November 14, 2007, prepared by
Rybak Geotechnical, Inc.; Asbestos Report, dated July 24, 2006, prepared by Atkins
Environmental H.E.L.P., Inc.; Lead Based Paint Survey Report, dated May 5, 2011,
prepared by Atkins Environmental H.E.L.P., Inc.; ALTA/AGSM Land Title Survey, dated
October 5, 2015, prepared by Sitetech, Inc.; Phase II Environmental Site Assessment &
Limited Subsurface Investigation Report, dated November 5, 2015, prepared by Atkins
Environmental H.E.L.P., Inc.; Geotechnical Investigations, dated November 10, 2015,
prepared by Geocon West, Inc.; and Due Diligence / Initial Site Investigation, dated
December 21, 2015, prepared by Sitetech Inc. (collectively, "Reports"), pertaining to the
physical, environmental and/or title condition of the Theatre Property, and the use and
development of the Theatre Property, which are in Successor Agency's or City's
possession or control. Successor Agency and City also represent and warrant that, to the
best of the Successor Agency's Actual Knowledge and City's Actual Knowledge,
respectively as of the Date of Agreement, Successor Agency and City have furnished
Developer with copies of any and all unrecorded leases, service contracts, easements,
licenses and/or other unrecorded agreements ("Unrecorded Agreements") (collectively,
the Unrecorded Agreements and Reports are referred to herein as the "Documents"), if
any, affecting the Theatre Property, or portion thereof. Successor Agency and City shall
notify Developer in writing of any material changes to any Documents of which Successor
Agency or City become aware of before Closing. Successor Agency and City make no
representation or warranty regarding the completeness or accuracy of the Documents.
Successor Agency and/or City shall terminate any and all Unrecorded Agreements prior
to Closing.
2.14 AS -IS CONVEYANCE SUBJECT TO SATISFACTION OF THE
DEVELOPER CONDITIONS PRECEDENT, DEVELOPER SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT SUCCESSOR AGENCY IS SELLING AND
DEVELOPER IS PURCHASING AS OF THE CLOSING THE THEATRE PROPERTY ON
AN "AS IS WITH ALL FAULTS" BASIS, CONDITION AND STATE OF REPAIR
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INCLUSIVE OF ANY AND ALL FAULTS AND DEFECTS, LEGAL, PHYSICAL, OR
ECONOMIC, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE
CLOSING ("AS -IS CONDITION") AND EXCEPT AS PROVIDED IN SECTIONS 1.2(1),
1.2(2) AND 2.13 OF THIS AGREEMENT DEVELOPER IS NOT RELYING ON ANY
REPRESENTATIONS OR WARRANTIES FROM SUCCESSOR AGENCY OR CITY OR
ANY OF SUCCESSOR AGENCY OR CITY'S ELECTED OFFICIALS, OFFICERS,
AGENTS, EMPLOYEES, REPRESENTATIVES OR ATTORNEYS (EACH, A
"SUCCESSOR AGENCY PARTY" AND COLLECTIVELY, "SUCCESSOR AGENCY
PARTIES") AS TO ANY MATTERS CONCERNING THE THEATRE PROPERTY.
2.15 Independent Investigation. Concurrent with the execution of this
Agreement, Successor Agency will provide Developer a right of access to the Theatre
Property pursuant to the terms of the Right of Entry Permit, attached hereto as Exhibit H,
for purposes of physical investigation, including but not limited to, soil and groundwater
testing, environmental audits, storm water retention analysis, and adequacy of utilities
including water, sewer, gas and electricity. Developer acknowledges, agrees, represents,
and warrants that, prior to Closing, Developer has been given a full opportunity to obtain,
review, inspect and investigate each and every aspect of the Theatre Property, either
independently or through agents of the Developer's choosing, including the following
(herein collectively referred to as the "Site Condition"):
(a) The size and dimensions of the Theatre Property.
(b) The availability and adequacy of water, sewage, fire
protection, and any utilities serving the Theatre Property.
(c) All matters relating to title including extent and conditions of
title to the Theatre Property, taxes, assessments, and liens.
(d) All legal and governmental laws, statutes, rules, regulations,
ordinances, limitations on title, restrictions or requirements concerning the Theatre
Property including zoning, use permit requirements and building codes.
(e) Natural hazards, including flood plain issues, currently or
potentially concerning or affecting the Theatre Property.
(f) The physical, legal, economic and environmental condition
and aspects of the Theatre Property, and all other matters concerning the conditions, use
or sale of the Theatre Property, including any permits, licenses, agreements, and liens,
zoning reports, engineers' reports and studies and similar information relating to the
Theatre Property. Such examination of the condition of the Theatre Property has
included examinations of the soil, geology, groundwater, the presence of known or
unknown faults, and for the release, presence or absence of known or unknown
Hazardous Materials in, on, or under the Theatre Property as Developer deemed
necessary or desirable.
Property.
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(g) Any easements and/or access rights affecting the Theatre
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(h) Any contracts and other documents or agreements affecting
the Theatre Property.
(i) All other matters of material significance affecting the Theatre
Property.
Developer hereby acknowledges that it is aware of and understands the following:
As a result of investigations of the Old Town Newhall Property, the presence of
three (3) underground storage tanks ("USTs") and other underground structures
and associated piping, as well as asbestos floor tile have been identified thereon,
though it is not clear if any such conditions are located on or within the Theatre
Property.
• Pursuant to the terms of the Mixed Use PSA and subject to the execution of a right
of entry agreement between Mixed Use Developer and Successor Agency, Mixed
Use Developer is obligated to remove the USTs, underground structures,
associated piping and asbestos floor tiles, as well as the removal and disposal of
soil impacted by releases from the USTs, and backfill of clean material in the areas
of excavation on or within the Old Town Newhall Property ("UST Removal
Construction"), and preparation and approval of closure reports for the USTs, and
securing a no further action letter from the appropriate regulatory agencies for the
Old Town Newhall Property, if appropriate ("UST Removal Regulatory
Approval")(collectively the UST Removal Construction and UST Removal
Regulatory Approval is referred to herein as the "UST Removal Work").
Mixed Use Developer is obligated to complete the UST Removal Work on the Old
Town Newhall Property sixty (60) days prior to the Outside Date for Closing of the
Mixed Use Property as provided in the Mixed Use PSA.
• Mixed Use Developer will retain the right to cancel all or any portion of the UST
Removal Work to be undertaken on the Old Town Newhall Property prior to its
completion, thereby resulting in the termination of the Mixed Use PSA.
Developer understands, acknowledges and agrees that Successor Agency is not making
any representation or warranty that the UST Removal Work will be undertaken or
completed and Successor Agency has no obligation whatsoever to undertake or
complete the UST Removal Work. If the UST Removal Work is not undertaken or
completed in accordance with the Mixed Use PSA or the Mixed Use PSA is otherwise
terminated in accordance with the terms thereof prior to the Outside Date with respect to
the Closing of the Theatre Property, Successor Agency shall have the right to terminate
this Agreement and Successor Agency shall not be in default under this Agreement.
If the UST Removal Work is undertaken and completed in accordance with the
Mixed Use PSA, Successor Agency shall provide Developer written notice of its
completion accompanied by documentation evidencing the UST Removal Regulatory
Approval. Developer shall upon the earlier of (i) thirty (30) days from the date of
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Developer's receipt of the notice from Successor Agency of completion of the UST
Removal Work, or (ii) five (5) days prior to the Outside Date for the Closing of the Theatre
Property, provide written notice to Successor Agency of Developer's approval or
disapproval of any Site Condition, in its sole discretion. Developer's failure to give written
approval or disapproval of the Site Condition within such time limit shall be deemed
Developer's disapproval of the Site Condition. If Developer notifies Successor Agency of
its disapproval of the Site Condition or is deemed to have disapproved the Site Condition,
then either Successor Agency or Developer shall have the right to terminate this
Agreement by providing written notice of termination of this Agreement to the other.
2.16 Disclaimers. Developer acknowledges and agrees that except as expressly
set forth in Section 1.2(1) of this Agreement: (i) neither Successor Agency, nor any
Successor Agency Party, has made any representations, warranties, or promises to
Developer, or to anyone acting for or on behalf of Developer, concerning the condition of
the Theatre Property or any other aspect of the Theatre Property; (ii) the condition of the
Theatre Property has been independently evaluated by Developer prior to the Closing;
and (iii) any information including any engineering reports, architectural reports, feasibility
reports, marketing reports, title reports, soils reports, environmental reports, analyses or
data or other similar reports, or information of whatever type or kind, if any, which
Developer has received or may hereafter receive from Successor Agency or any
Successor Agency Party were and are furnished without warranty of any kind, excluding
the Successor Agency's Actual Knowledge or City's Actual Knowledge of the
untruthfulness of such reports or information, and on the express condition that
Developer has made its own independent verification of the accuracy, reliability and
completeness of such information and that Developer may rely on the foregoing at its own
peril and knowingly assumes such risk.
2.17 Waivers and Releases. Developer hereby waives and releases Successor
Agency, City and Successor Agency Parties, as of the Closing, from any and all manner
of Claims or other compensation whatsoever, in law or equity, of whatever kind or nature,
whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or
contingent, now existing or which may in the future arise, including lost business
opportunities or economic advantage, and special and consequential damages, arising
out of, directly or indirectly, or in any way connected with: (i) all warranties of whatever
type or kind with respect to the physical or environmental condition of the Theatre
Property, whether express, implied or otherwise, including those of fitness for a particular
purpose, tenantability, habitability or use; (ii) use, management, ownership or operation
of the Theatre Property, whether before or after Closing; (iii) the physical, environmental
or other condition of the Theatre Property; (iv) the application of, compliance with or
failure to comply with any and all Applicable Laws with respect to the Theatre Property; (v)
Hazardous Materials in, on, or under the Theatre Property; and (vi) the As -Is Condition of
the Theatre Property; the foregoing are collectively referred to as "Property Claims". By
releasing and forever waiving the Property Claims, Developer expressly waives as of the
Closing with respect to the Property Claims released hereunder any rights under
California Civil Code Section 1542, which provides:
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"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR."
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Notwithstanding the foregoing, the waiver and release of Property Claims shall
not apply to and shall not limit Developer's rights with respect to: (i) Property E
Claims arising out of Successor Agency's or City's fraud; (ii) Property Claims o
arising out of
a breach by Successor Agency or City of their
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representations
and warranties contained in this Agreement; (iii)
Property
Claims arising
out of a breach by Successor Agency or City of an
express
covenant or obligation of Successor Agency or City under this Agreement; or 00
(iv) Property Claims arising out of a breach by Successor Agency or City of any
document delivered by Successor Agency or City at Closing.
3. ENTITLEMENT AND DEVELOPMENT OF THE PROJECT.
3.1 Schedule of Performance. Within the times set forth in the Schedule of
Performance, attached hereto as Exhibit E, Developer shall use good faith efforts to apply
for and secure all required permits, entitlements and governmental approvals as set forth
herein, and thereafter following the Closing Developer shall use good faith efforts to
commence and complete construction of the Project, and satisfy all of Developer's
obligations under this Agreement within the times established therefor in the Schedule of
Performance, as the same shall be extended by Force Majeure Delays or Agreed
Extensions of Performance pursuant to Section 6.2. The Schedule of Performance is
subject to revision in writing from time to time as may be agreed to in the reasonable
discretion of Developer and the Executive Director, or his or her designee. As provided in
Section 6.2, in no event may Force Majeure Delays or Agreed Extension of Performance
extend the Outside Date for Closing by more than one hundred eighty (180) calendar
days. The foregoing notwithstanding, the Outside Date for Closing of the Theatre
Property shall be extended by the Executive Director to the same extent the "Outside
Date" for "Closing" of the Mixed Use Property is extended due to an "Environmental Force
Majeure Delay" in accordance with, and as those terms are defined in, the Mixed Use
PSA.
3.2 Certificate of Compliance for Theatre Property. Within the times set forth in
the Schedule of Performance, the Developer shall prepare and Successor Agency shall
approve, a plat map and legal description of the area comprising the Theatre Property,
and Successor Agency shall thereafter process and obtain City approval of a certificate of
compliance for the Theatre Property as a separate legal parcel in accordance with the
California Subdivision Map Act and Chapter 16.35 of the Municipal Code.
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3.3 Entitlement of the Project. Within the times set forth in the Schedule of
Performance, the Developer shall submit all applications for and secure all required
Project Approvals, including the Development Permit, necessary for the development and
construction of the Project.
3.4 Permits. Within the times set forth in the Schedule of Performance,
Developer, at its expense, shall use good faith efforts to apply for and secure or cause to
be applied for and secured any and all permits and approvals which may be required by
City and any other governmental agency having jurisdiction over the Project, including
permits for the demolition and removal of any structures or improvements, if any, on the
Theatre Property, and (if applicable) encroachment or right of entry permits for
performance of the off-site utility improvements required by the Project Approvals.
Within the times set forth in the Schedule of Performance, Developer shall use
good faith efforts to: (a) submit to City and any other governmental agency having
jurisdiction over the Project, plans and applications necessary for issuance of all
demolition, grading and building permits required to undertake, develop and construct the
Project; and (b) secure from City and any other governmental agency having jurisdiction
over the Project all demolition, grading and building permits required to undertake,
develop and construct the Project.
3.5 Development of Project. Within the times set forth in the Schedule of
Performance, the Developer shall construct and develop the Project in accordance with
the Project Approvals, and Project Agreements. All such work related to the Project shall
be performed by licensed contractors and in compliance with Section 3.10.
3.6 Cost of Development; Theatre Development Grant; Theatre Operating
Covenant. Except as otherwise provided herein, all the costs of site preparation
(including demolition and removal of all structures or improvements on the Theatre
Property), planning, designing, constructing and developing the Project, incurred by
Developer shall be borne solely by Developer.
In consideration of Developer's obligations hereunder, including the obligation to
develop the Project and the covenants set forth in the Theatre Operating Covenant to be
recorded on the Theatre Property upon Final Completion of the Project, City shall: (i) at or
before Closing, pay on behalf of Developer the Purchase Price for the Theatre Property in
the amount of FOUR HUNDRED FORTY THOUSAND FIVE HUNDRED TWENTY FIVE
AND 00/100 Dollars ($440,525.00) ("Theatre Property Acquisition Grant"); (ii) as more
particularly described below, pay on behalf of Developer all application and processing
fees associated with the Project Approvals and all plan check fees, permit fees and
impact fees payable for all demolition, grading and building permits reviewed, approved
and issued by City which are required to undertake, develop and construct the Project up
to a maximum amount not to exceed FOUR HUNDRED THOUSAND AND 00/100
DOLLARS ($400,000.00)("Permit Fee Grant"); (iii) at or before Closing, deposit with
Escrow Agent the amount of SIX HUNDRED THOUSAND AND 00/100 DOLLARS
($600,000.00)("Site Preparation Grant") to be held in an escrow account and disbursed
by Escrow Agent to reimburse Developer for its Site Preparation Costs in accordance with
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the terms of the Site Preparation Grant Escrow Agreement; and (iv) at or before Closing,
deposit with Escrow Agent the amount of ONE MILLION NINE HUNDRED EIGHTY
THOUSAND AND 00/100 DOLLARS ($1,980,000.00)("Operating Covenant Grant'), to
be held in an interest bearing account and disbursed by Escrow Agent to Developer upon
Final Completion of the Project in accordance with the terms of the Operating Covenant
Grant Escrow Agreement. As provided in the Site Preparation Grant Escrow Agreement
and Operating Covenant Grant Escrow Agreement, all interest earned on the Site
Preparation Grant or Operating Covenant Grant on deposit through Escrow Agent shall
accrue to the benefit of City, shall not be added to the principal of the Site Preparation
Grant or Operating Covenant Grant, and shall be returned to City upon termination of the
respective Site Preparation Grant Escrow Agreement or Operating Covenant Grant
Escrow Agreement.
The Theatre Property Acquisition Grant, Permit Fee Grant, Site Preparation Grant
and Operating Covenant Grant are individual and separate grant components and
collectively shall not exceed a maximum amount of THREE MILLION FOUR HUNDRED
TWENTY THOUSAND FIVE HUNDRED TWENTY FIVE AND 00/100 DOLLARS
($3,420,525.00)("Theatre Development Grant'). If, as of Final Completion of the
Project, any portion of the Permit Fee Grant is unexpended, said unexpended portion, up
to a maximum of EIGHTY THOUSAND AND 00/100 DOLLARS ($80,000.00)
("Unexpended Permit Fee Grant'), may be added to the Site Preparation Grant and
applied to eligible Site Preparation Costs. Except as provided in the immediately
preceding sentence, no unexpended portion of a component of the Theatre Development
Grant may be added to and applied to another component of the Theatre Development
Grant and all such unexpended funds shall be retained by and/or returned to City.
(1) Permit Fee Grant. After the Date of Agreement and through Final
Completion of the Project, City shall pay on behalf of Developer all application and
processing fees associated with the Project Approvals, including the costs of third party
consultants hired by City to undertake analysis of the Project in accordance with CEQA,
and all plan check fees for the review of plans submitted by Developer to City for the
demolition, grading and building permits needed to construct the Project, all applicable
permit fees payable in connection with the demolition, grading and building permits
issued by City needed to construct the Project, and all impact fees payable to City or
otherwise collected by City on behalf of other governmental agencies (e.g. school impact
fees) which are payable in connection with permits issued by City for the Project, up to an
amount not to exceed the Permit Fee Grant. City shall prepare and provide to Developer
a monthly accounting of all fees paid by City on behalf of Developer. Within thirty (30)
days of Final Completion of the Project, City shall prepare and provide to Developer a
final accounting of all fees paid by City on behalf of Developer in accordance with the
Permit Fee Grant. Within thirty (30) days after issuance of the final accounting, City shall
deposit the unexpended portion of the Permit Fee Grant, not to exceed the Unexpended
Permit Fee Grant, with Escrow Agent for the Site Preparation Grant Escrow Agreement.
Any amount of application fees, processing fees, plan check fees, permit fees or impact
fees applicable to the Project or Project Approvals, which are due and payable and in
excess of the Permit Fee Grant, shall be paid by Developer.
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(2) Site Preparation Grant. As more particularly provided in the Site
Preparation Grant Escrow Agreement, after Closing, Developer shall submit to City no
more frequently than on a monthly basis, a Site Preparation Draw Request, in the form
attached as Exhibit B to the Site Preparation Grant Escrow Agreement, accompanied by
an accounting of all Site Preparation costs incurred by Developer in connection with the
demolition, clearing and grading activities conducted on the Theatre Property preparatory
to building and constructing the Project, supported by copies of receipts of Site
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Preparation Costs paid. City shall have fifteen (15) working days to review and approve a
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Site Preparation Grant Draw Request from the date of submittal by Developer. Upon
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approval of all or a portion of a Site Preparation Grant Draw Request, City shall execute
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and deliver to Escrow Agent a Site Preparation Grant Disbursement Approval Notice, in
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the form attached as Exhibit C to the Site Preparation Grant Escrow Agreement, and
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Escrow Agent shall expeditiously thereafter release to Developer the sum stated thereon
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and approved by City. Except as provided in this Section 3.6 relative to the application of
Unexpended Permit Fee Grant, if any, to eligible Site Preparation Costs, in no event shall
City be obligated to pay or reimburse Developer for Site Preparation Costs in an amount
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that exceeds the Site Preparation Grant. City shall identify any items included on a Site
Preparation Grant Draw Request which are not approved and the reason for such
disapproval shall be provided to Developer in writing.
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As used herein and the Site Preparation Grant Escrow Agreement, "Site Preparation
Costs" shall mean actual out-of-pocket costs reasonably incurred by Developer after the
Date of Agreement, and paid to unaffiliated third parties in connection with the demolition
of existing improvements on the Property, and the clearing, grubbing and grading of the
Property and other site preparation work preparatory to building and constructing the
Project, including, without limitation, costs of remediating any existing site conditions,
including costs, fees or taxes associated with disposal of soils, geotechnical and
engineering consultants, contractors and materials. Costs associated with site
preparation end as soon as the first physical element of the building foundation is
installed.
(3) Limitations on Assignment of Theatre Development Grant. The right
to receive the Theatre Development Grant shall run with the Theatre Property and shall
not be assignable to any person or entity other than the Developer.
3.7 Sources and Uses. Within the times set forth in the Schedule of
Performance, Developer shall submit to Successor Agency for review and approval a
pro -forma budget (a) identifying reasonably anticipated and estimated costs of
purchasing the Theatre Property and developing and constructing the Project, and (b)
identification of the anticipated sources of such funds, including the Theatre Development
Grant ("Sources and Uses"). The Sources and Uses shall be submitted no later than (i)
thirty (30) calendar days following the Date of Agreement, (ii) thirty (30) calendar days
following approval of the Project Approvals, (iii) thirty (30) calendar days following
Developer's receipt of a commitment letter from its construction lender for the Project, and
(iv) no less than five (5) calendar days following Developer's receipt of final loan
documents evidencing construction financing for the Project, and in any event, prior to
Closing. The Sources and Uses shall be updated from time to time before the Closing as
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3.f
provided herein and to the extent such information is available and reliable, shall include
all estimated "hard" and "soft" costs and contingencies, shall reflect, to the extent
possible, firm bids or accepted contracts, shall identify the anticipated sources of funds
(e.g., Developer's Principals' capital contributions, third -party loans, third -party equity
investments) and shall be accompanied by evidence reasonably satisfactory to
Successor Agency that upon implementation of the Sources and Uses, Developer shall
have sufficient funds to meet all budget requirements. g
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Further, within the times set forth in the Schedule of Performance, Developer shall m
submit to Successor Agency for review and approval (a) its pre -appraisal of the Project,
(b) its final construction plan appraisal, (c) its un -redacted guaranteed maximum price a
construction contract for the Project, and (d) evidence of its loan submission for s
construction and permanent financing and approval of said financing. w
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Successor Agency shall conduct their review and approval of the Sources and
Uses submitted in a timely manner so as to not delay Closing. Successor Agency's 00
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approval of the Sources and Uses shall not be unreasonably withheld, conditioned or
delayed. r
3.8 Insurance Requirements. Prior to Commencement of Construction and
until Final Completion of the Project, Developer shall take out and maintain or shall cause
its contractor to take out and maintain, a commercial general liability policy with a
minimum limit of Two Million Dollars ($2,000,000) per occurrence for bodily injury,
personal injury and property damage, or such other higher policy limits as may be
required by Developer's lenders or other institutions providing financing to Developer for
the Project. Coverage shall be at least as broad as Insurance Services Office
Commercial General Liability coverage (occurrence Form CG 0001). If commercial
general liability insurance or other form with a general aggregate is used, the general
aggregate limit shall be at least Five Million Dollars ($5,000,000). Developer and each of
its contractors shall also take out and maintain a comprehensive automobile liability
policy in an amount not less than One Million Dollars ($1,000,000). Developer shall also
take out and maintain, or shall cause its contractor to take out and maintain, contractor's
pollution liability insurance policy in an amount not less than One Million Dollars
($1,000,000) per occurrence and annual aggregate.
Until Final Completion of the Project, Developer shall also obtain and maintain
builder's all-risk insurance in an amount not less than the full insurable cost of the
improvements to be constructed, or caused to be constructed, on a replacement cost
basis, or such other greater policy limits as may be required by Developer's lenders or
other institutions providing financing for the Project. Further, Developer shall furnish or
cause to be furnished to Successor Agency evidence reasonably satisfactory to
Successor Agency that Developer and any contractor with whom it has contracted for the
performance of work on the Theatre Property or otherwise pursuant to this Agreement
carries workers' compensation insurance as required by law.
Companies writing the insurance required hereunder shall be licensed to do
business in the State of California. Insurance is to be placed with insurers with a current
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A.M. Best's rating of no less than A:VII or otherwise reasonably acceptable to Successor
Agency. The commercial general liability, comprehensive automobile, and contractor's
pollution liability insurance policies hereunder shall name Successor Agency and
Successor Agency Parties as additional insureds with respect to liability arising out of
work or operations performed by or on behalf of the Developer on or about the Theatre
Property, including materials, parts or equipment furnished in connection with such work
or operations.
Developer shall furnish Successor Agency with a certificate of insurance
evidencing the required insurance coverage and a duly executed endorsement
evidencing such additional insured status. To the extent provided by the insurance
carrier, the insurance policies shall be endorsed to notify Successor Agency of any
material change, cancellation or termination of the coverage at least 30 days in advance
of the effective date of any such material change, cancellation or termination. Coverage
provided hereunder by Developer shall be primary insurance and shall not be contributing
with any insurance, self-insurance or joint self-insurance maintained by Successor
Agency or any Successor Agency Party, and the policy shall so provide. Any insurance,
self-insurance or joint self-insurance maintained by Successor Agency or any Successor
Agency Party shall be excess of and shall not contribute with the insurance required to be
maintained by Developer. The insurance policies shall contain a waiver of subrogation
for the benefit of Successor Agency and any Successor Agency Party. The required
certificate and endorsement for the Project shall be furnished by the Developer to
Successor Agency prior to the commencement of construction of the Project.
Any deductibles or self-insured retentions must be declared to and approved by
Successor Agency (which shall not be unreasonably withheld, conditioned or delayed),
which may require Developer to provide proof of its ability to pay losses and costs of
related investigation, claim administration, and defense expenses within the retention.
3.9 Rights of Access. Prior to recording of the Quitclaim Deed -Final
Completion pursuant to Section 5.4(3), Successor Agency representatives shall have the
right of access to the Theatre Property, without charges or fees, at reasonable times and
after prior arrangement with Developer, so long as such representatives comply with all
safety rules of Developer and its contractors and insurers and do not unreasonably
interfere with the progress of construction of the Project. Nothing herein shall be deemed
to limit the ability of City to conduct code enforcement and other administrative
inspections of any portion of the Theatre Property or Project at any time in accordance
with applicable law. Successor Agency shall indemnify, defend, protect and hold
Developer harmless from any Claims arising out of the negligence or willful misconduct of
Successor Agency representatives in the course of accessing the Theatre Property.
3.10 Compliance With Applicable Laws; Prevailing Wage Requirements.
Developer shall carry out, and shall ensure that its contractors and subcontractors carry
out, the Project in conformity with all Applicable Laws, including all applicable State Labor
Code requirements; the City zoning and development standards; building, plumbing,
mechanical and electrical codes; all other provisions of the Municipal Code; and all
applicable disabled and handicapped access requirements, including the Americans With
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Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et
seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil
Code Section 51, et seq.
(1) Prevailing Wage Requirements. Developer acknowledges and
agrees that the Project work will constitute "public works" as defined in Labor Code
section 1720 in that such Project involves construction, alteration, demolition, installation,
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or repair work done under contract and paid for in whole or in part out of public funds
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under Labor Code section 1720 et seq. Accordingly, Developer shall comply with all
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applicable State Labor Code requirements, including provisions requiring the payment of
prevailing wages in connection with development of the Project. Developer shall be
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required to comply with State prevailing wage requirements in connection with
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development of the Project, if and to the extent required by applicable State Labor Code
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requirements. Developer shall require the general contractor(s) for the Project to post on
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the Theatre Property prevailing wage rates for all applicable trades and to submit certified
copies of payroll records to Developer to ensure compliance with State Labor Code
00
requirements pertaining to "public works." Developer shall provide such payroll records to
City within ten (10) days following City's request therefor. Developer shall also include in
Developer's general contractor agreement for the Project a provision, in a form
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acceptable to City, obligating Developer's general contractor to require its contractors
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and/or subcontractors to comply with all State Labor Code requirements pertaining to
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"public works." Finally, Developer shall provide and maintain bonds in accordance with
Civil Code Section 9550 to secure the payment of contractors, including the payment of
wages to workers performing the work of constructing the Project.
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Developer shall defend (with counsel reasonably acceptable to City) City and
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Successor Agency and its and their officers, employees, agents and representatives from
and against any and all Claims arising out of Developer's obligation to comply with all
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State Labor Code requirements pertaining to public works and payment of prevailing
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wages, as required pursuant to the immediately preceding paragraph, and indemnify and
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hold harmless City and Successor Agency with respect to all final judgments or
settlements in actions brought by any "contractor" in which City or Successor Agency is (i)
2
determined to be an "awarding body" and (ii) damages are awarded, pursuant to Labor
L
Code sections 1726, 1781 or Applicable Law. Developer's indemnity obligations under
this Section 3.10(1) shall survive expiration or termination of this Agreement.
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Developer hereby waives, releases and discharges forever City and Successor
Agency, and its and their employees, officers, volunteers, agents and representatives,
from any and all present and future Claims arising out of or in any way connected with
Developer's obligation to comply with all State Labor Code requirements pertaining to
public works and payment of prevailing wages pursuant to the first paragraph of this
Section 3.10(1).
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3.11 Final Completion of Project. Following Final Completion of the Project, any
Party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in
the Theatre Property shall not (because of such ownership, purchase, lease or
acquisition) incur any obligation or liability under this Agreement with respect to such
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Project. Except as otherwise provided herein, after Final Completion of the Project,
neither Successor Agency nor any other person shall have any rights, remedies or
controls with respect to the Theatre Property that it would otherwise have or be entitled to
exercise under this Agreement as a result of a default in or breach of any provision of this
Agreement, and the respective rights and obligations of the Parties with reference to the
Theatre Property shall be as set forth in the Grant Deed and Theatre Operating
Covenant.
3.12 Liens and Stop Notices. Developer shall not allow to be placed on the
Theatre Property or any part thereof or any adjacent property (including without limitation
any other portion of the Old Town Newhall Property) any lien or stop notice arising from
any work or materials performed or provided or alleged to have been performed or
provided by Developer's contractors, subcontractors, agents or representatives. If a
claim of a lien or stop notice is given or recorded affecting the Theatre Property or any
adjacent property, Developer shall within 60 days of Developer becoming aware of such
recording or service: (i) pay and discharge the same; or (ii) undertake such efforts as
Developer deems necessary to contest the claim of a lien or stop notice and effect the
release thereof by recording and delivering to the Executive Director a surety bond in
sufficient form and amount.
3.13 Right of Successor Agency to Satisfy Other Liens After any Closing. After
Closing, and provided the requirements set forth in Section 3.12 have not been met by
Developer, Successor Agency shall have the right, but not the obligation, upon not less
than ten (10) days prior written notice to Developer, to satisfy any such liens or stop
notices. In such event, Developer shall be liable for and Successor Agency shall be
entitled to reimbursement by Developer for the amount reasonably paid by the Successor
Agency to discharge such lien or satisfy such stop notice.
3.14 Mortgage, Deed of Trust, Sale and Lease -Back Financing.
(1) No Encumbrances Except Mortgages, Deeds of Trust for
Development. Prior to Final Completion of the Project, mortgages and deeds of trust will
be permitted on the Theatre Property only to the extent otherwise provided in this
Agreement, and only for the purpose of financing the acquisition and/or construction and
development of the Project improvements (including but not limited to, design, planning,
permitting, remediation, site preparation and horizontal and vertical construction) on the
Theatre Property owned by Developer. Following Final Completion of the Project,
mortgages and deeds of trust shall be permitted for any purpose, and Successor Agency
shall have no approval or disapproval rights with respect thereto. The preceding to the
contrary notwithstanding, following the Substantial Completion of improvements for the
Project, Developer shall be permitted to obtain, without the consent or approval of the
Successor Agency, permanent financing to be secured by the Theatre Property upon
which such improvements were Substantially Completed. The words "mortgage" and
"deed of trust" as used herein shall include other appropriate modes of financing real
estate acquisition, construction, and land development.
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(2) Holder Not Obligated to Construct Improvements. Neither the holder
of any mortgage or deed of trust on the Theatre Property nor any person or entity,
including any deed of trust beneficiary or mortgagee, who acquires title or possession to
the Theatre Property, by foreclosure, trustee's sale, deed in lieu of foreclosure or
otherwise, shall be obligated by the provisions of this Agreement to construct or complete
the Project improvements or to guarantee such construction or completion. Nothing in
this Agreement shall be deemed to or be construed to permit or authorize any such
holder, person or entity to devote the Theatre Property or portion thereof to any uses or to
construct any improvements thereon other than those uses and Project improvements
provided for or authorized by this Agreement, the Project Approvals, or as otherwise
agreed to by the Successor Agency.
(3) Notice of Default to Mortgagee or Deed of Trust Holders; Right to
Cure. With respect to any mortgage or deed of trust granted by Developer on the Theatre
Property, whenever Successor Agency shall deliver any Notice or demand to Developer
with respect to any breach or Default by Developer hereunder, Successor Agency shall at
the same time deliver to each holder of record of any mortgage or deed of trust on the
Theatre Property a copy of such Notice or demand. No Notice of Default shall be effective
as to the holder unless such Notice is given. Each such holder shall (insofar as the rights
of Successor Agency are concerned) have the right, at its option, within sixty (60) days
after the receipt of the Notice, to cure or remedy or commence to cure or remedy any such
Default and to add the cost thereof to the mortgage debt and the lien of its mortgage. If
such breach or Default cannot reasonably be cured within such sixty (60) day period, then
such holder shall have a reasonable period of time following the expiration of such sixty
(60) day period to cure or remedy such breach or Default so long as such holder
commences such cure or remedy within the initial sixty (60) day period and diligently
prosecutes such cure or remedy to completion. In the event possession of the Theatre
Property is required to effectuate such cure or remedy, the holder shall be deemed to
have timely cured or remedied if it commences the proceedings necessary to obtain
possession thereof within sixty (60) days, diligently pursues such proceedings to
completion, and, after obtaining possession, diligently completes such cure or remedy
(the foregoing time periods being subject to extension during the period that such holder
is precluded from taking or pursuing any such action as a consequence of any bankruptcy
stay or other court order). Nothing in this Agreement shall preclude or prevent any holder
of record of any mortgage or deed of trust on the Theatre Property from curing or
remedying any breach or Default by Developer hereunder, and Successor Agency
agrees to accept any such cure or remedy undertaken by any such holder of record of any
mortgage or deed of trust on the Theatre Property.
3.15 Covenants Regarding Operation, Management and Maintenance Prior to
Closing. From the Date of Agreement until the Closing or earlier termination of this
Agreement, Successor Agency shall operate, manage and maintain the Theatre Property
in a manner generally consistent with the manner in which Successor Agency has
operated, managed and maintained the Theatre Property prior to the date hereof.
Notwithstanding the foregoing, from and after the Date of Agreement, excepting the
continued use of all or a portion of the Theatre Property for public parking and occasional
use as a farmer's market and other City sponsored events or activities, and the terms of a
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right of entry agreement to be entered into pursuant to the terms of the Mixed Use PSA
relative to the UST Removal Work, Successor Agency shall not: (a) cause nor voluntarily
permit, any new lien, encumbrance or any other matter to cause the condition of title to be
changed, without Developer's prior written consent, other than liens or other
assessments, bonds, or special district liens including without limitation, Community
Facility Districts, that arise by reason of any local, City, Municipal or County Project or
Special District; (b) enter into any agreements with any governmental agency, utility
company or any person or entity regarding the Theatre Property, which would remain in
effect after the Closing (other than to implement any matter described in (a) above),
without obtaining Developer's prior written consent; or (c) amend any existing licenses,
agreements or leases, or enter into any new licenses, agreements or leases, that would
give any person or entity any right of possession to any portion of the Theatre Property, or
which would remain in effect after the Closing.
4. COVENANTS. RESTRICTIONS AND AGREEMENTS
4.1 Uses. Developer shall use the Theatre Property, in accordance with the
Project Approvals and the Theatre Operating Covenant. These restrictions on use, as
more particularly set forth in the Theatre Operating Covenant, shall be recorded in the
Official Records of the County of Los Angeles.
4.2 Prohibited Uses. The Parties acknowledge that the Project to be developed
and constructed on the Theatre Property includes an Office/Retail Component and a
Theatre Component. As provided in the Theatre Operating Covenant, following the
seventh year of operation of the Theatre Component, some of the screens and
associated space of the Theatre Component may be converted to uses similar to those in
the Office/Retail Component. Developer acknowledges that no portion of the Project (i.e.
Office/Retail Component or Theatre Component) may be used for uses prohibited in the
Specific Plan. In addition, Developer acknowledges that the following uses, as defined in
the Municipal Code and/or Specific Plan, shall also not be permitted in the Project:
1. Hookah Bar/Cigar Club
2. Adult Businesses
3. Tattoo Parlors
4. Massage Parlors
5. Schools, Public or Private or Specialized
6. Used Merchandise/Thrift Stores/Second Hand Stores
7. Ambulance or Paramedic Dispatch
8. Lodging: Hotel or Motel
9. Personal Services, Restricted
Personal Services, Restricted, are defined here and/or in the Municipal Code or Specific
Plan as follows and accordingly shall not be permitted in the Project:
Check cashing stores or services
Farmer's market (permanent)
Fortune tellers
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• Gun stores
• Laundromats (self-service laundry)
• Cash, currency, and money transfer stores and services
• Palm and card readers
• Pawnshops
• Psychics
• Recycling Vending Machines as an Accessory Use
• Spas and hot tubs for hourly rental
• Tobacco paraphernalia stores
• Tattoo and body piercing services
4.3 Taxes and Assessments. After the Closing, it shall be Developer's
responsibility to pay prior to delinquency all ad valorem real estate taxes and
assessments on the Theatre Property and the Project that pertain to periods on or after
the Closing, subject to Developer's right to contest in good faith any such taxes.
4.4 Effect and Duration of Covenants. The covenants established in this
Agreement, the Grant Deed, the Theatre Operating Covenant shall, without regard to
technical classification and designation, be binding upon and inure for the benefit and in
favor of the Parties hereto and their successors and assigns. The Parties are deemed the
beneficiary of the terms and provisions of this Agreement, the Grant Deed, the Theatre
Operating Covenant and of the covenants running with the land for and in their own right
and for the purposes of protecting the interests of the Parties, in whose favor and for
whose benefit this Agreement, the Grant Deed, Theatre Operating Covenant and the
covenants running with the land have been provided. This Agreement, the Grant Deed
and the Theatre Operating Covenant and the covenants therein shall run in favor of the
Successor Agency and City without regard to whether Successor Agency or City has
been, remains, or is an owner of any land or interest in the Theatre Property. Subject to
the limitations on remedies set forth in Section 5 hereto, the Parties shall have the right, if
this Agreement, the Grant Deed, the Theatre Operating Covenant or the covenants
therein are breached, to exercise all rights and remedies and to maintain any actions or
suits at law or in equity or other proper proceedings to enforce the curing of such
breaches to which it may be entitled under the terms of this Agreement, the Grant Deed or
the Theatre Operating Covenant.
4.5 No Successor Agency Approval of Tenants Required. Developer shall not
be required to obtain the Successor Agency's consent or approval as to the tenants to
whom Developer may lease portions of the Project and the Successor Agency shall not
impose any restrictions or limitations on the nature of the tenants to whom Developer may
lease portions of the Project; except that the use of the Theatre Property acquired by
Developer shall be subject to the use restrictions and limitations created by the Project
Approvals, the applicable zoning affecting the Project, and the Theatre Operating
Covenant.
4.6 Obligation to Refrain From Discrimination; Form of Non -Discrimination and
Non -Segregation Clauses. Developer covenants by and for itself and any successors in
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interest that there shall be no discrimination against or segregation of, any person or
group of persons on account of any basis listed in subdivision (a) or (d) of section 12955
of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of section 12955, and section
12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy,
tenure, or enjoyment of the Theatre Property, any improvements thereon, or any part
thereof, nor shall the grantee or any person claiming under or through him or her,
establish or permit any practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the Theatre Property herein conveyed. The
foregoing covenants and all other provisions of this Section 4.6 shall run with the land and
shall be contained in each subsequent grant deed conveying title to the Theatre Property,
any improvements thereon, or any part thereof, to any subsequent owner, and the
provisions of this Section 4.6 shall survive expiration or other termination of this
Agreement.
Developer shall refrain from restricting the rental, sale or lease of the Theatre
Property or any improvements thereon, or any part thereof, on account of any basis listed
in subdivision (a) or (d) of section 12955 of the Government Code, as those bases are
defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p)
of section 12955, and section 12955.2 of the Government Code. All such deeds, leases
or contracts for the rental, sale or lease of the Theatre Property or any improvements
thereon, or any part thereof, shall contain or be subject to substantially the following
nondiscrimination or non -segregation clauses:
(a) In deeds the following language shall appear: "The grantee
herein covenants by and for himself or herself, his or her heirs, executors, administrators,
and assigns, and all persons claiming under or through them, that there will be no
discrimination against or segregation of, any person or group of persons on account of
any basis listed in subdivision (a) or (d) of section 12955 of the Government Code, as
those bases are defined in sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of section 12955, and section 12955.2 of the Government Code, in the
sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises
herein conveyed, nor shall the grantee or any person claiming under or through him or
her, establish or permit any practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing
covenants shall run with the land."
(b) In leases the following language shall appear: "The lessee
herein covenants by and for himself or herself, his or her heirs, executors, administrators,
and assigns, and all persons claiming under or through him or her, and this lease is made
and accepted upon and subject to the following conditions: That there shall be no
discrimination against or segregation of any person or group of persons, on account of
any basis listed in subdivision (a) or (d) of section 12955 of the Government Code, as
those bases are defined in sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of section 12955, and section 12955.2 of the Government Code, in the
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3.f
leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises
herein leased nor shall the lessee himself or herself, or any person claiming under or
through him or her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy, of
tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased."
(c) In contracts, the following language shall appear: "There
shall be no discrimination against or segregation of any person or group of persons, on c
account of any basis listed in subdivision (a) or (d) of section 12955 of the Government m
Code, as those bases are defined in sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of section 12955, and section 12955.2 of the a
Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or 2
enjoyment of the premises, nor shall the transferee himself or herself or any person w
claiming under or through him or her, establish or permit any such practice or practices of V
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises." 00
4.7 Effect and Duration of Covenants. The covenants against discrimination,
as set forth in Section 4.56 shall remain in effect in perpetuity. The covenants regarding
use of the Theatre Property as set forth in Section 4.1 and the Theatre Operating "w
Covenant shall remain in effect in accordance with the terms of the Theatre Operating a
Covenant.
4.8 Sales Tax Point of Sale Designation. Developer shall use commercially
reasonable efforts to the extent allowed by law to require all persons and entities
providing bulk lumber, concrete, structural steel and pre -fabricated building components,
such as roof trusses, to be used in connection with the construction and development of,
or incorporated into, the Project, to (a) obtain a use tax direct payment permit; (b) elect to
obtain a subcontractor permit for the job site of a contract valued at Five Million Dollars
($5,000,000) or more; or (c) otherwise designate the Theatre Property as the place of use
of material used in the construction of the Project in order to have the local portion of the
sales and use tax distributed directly to City instead of through the county -wide pool.
Developer shall instruct its general contractor(s) for the Project to, and cause such
general contractor(s) to instruct its/their subcontractors to, cooperate with City to ensure
the local sales/use tax derived from construction of the Project is allocated to City to the
fullest extent possible. To assist City in its efforts to ensure that such local sales/use tax
is so allocated to City, Developer shall provide City with such information as shall be
reasonably requested by City regarding subcontractors working on the Project with
contracts in excess of the amount set forth above, including a description of all applicable
work and the dollar value of such subcontracts. City may use such information to contact
each subcontractor who may qualify for local allocation of use taxes to City.
Notwithstanding the foregoing, other than the cost of incidental paperwork and record
keeping, any such efforts to have the local sales/use tax derived from construction of the
Project allocated to City to the fullest extent possible shall be at no increased costs or
expense to Developer or any general contractor or subcontractor working on the Project,
and neither Developer nor any such general contractor or subcontractor shall be required
to take any action pursuant to this section that would result, directly or indirectly, (i) in any
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increase in the cost of the Project, or (ii) in any such general contractor or subcontractor
being characterized as a "reseller" (as opposed to a "consumer"), whether for purposes of
the taxation of `freight -in' charges, any fabrication activities or otherwise.
4.9 Old Town Newhall Public Parking Garage.
The Parties acknowledge that the Specific Plan contemplates the construction of a public
parking structure on a portion of the Old Town Newhall Property. The Parties further
acknowledge that the Successor Agency has prepared, and the Oversight Board has
approved, an amendment to the LRPMP to allow for the transfer of a portion of the Old
Town Newhall Property, as generally depicted on the site plan attached hereto as
Exhibit K, to the City for governmental use as parking (the "Parking Parcel"). As of the
Date of Agreement, the Department has approved the amendment to the LRPMP.
Prior to the Outside Date with respect to the Closing of the Theatre Property, the City
intends to acquire the Parking Parcel either pursuant to the amendment to the LRPMP, or
pursuant to a negotiated purchase and sale agreement between City and the Successor
Agency, for the purpose of constructing a parking structure on the Parking Parcel. The
anticipated parking structure is to be comprised of one subterranean level, with four levels
above to a maximum height of 55 feet, providing approximately 400 parking spaces, with
a fagade consistent with the preferred architectural design and standards set forth in the
Specific Plan (the "Parking Project").
Prior to the Outside Date with respect to the Closing of the Theatre Property, and within
the time periods set forth herein, City will use reasonable efforts to undertake the
following actions, referred to herein individually as "City Action" and collectively as "City
Actions", in furtherance of the Parking Project as follows:
• As of the Date of Agreement, City adopts a policy to establish guidelines, as
required under California Public Contract Code section 22162, for a standard
organizational conflict-of-interest policy, consistent with applicable law, regarding
the ability of a person or entity to submit a proposal as a design -build entity or to
join a design -build team for a design -build project procured pursuant to California
Public Contract Code section 22160 et seq. relative to the Parking Project;
• Within ten (10) calendar days of the Date of Agreement, City issues an RFP for the
services of a bridging architect to prepare plans related to the design of the Parking
Project sufficient to solicit proposals for design -build services from a design -build
contractor;
• Within sixty (60) calendar days of the Date of Agreement, City enters into a
contract with a bridging architect for the Parking Project;
• Within two hundred ten (210) calendar days of the Date of Agreement, City has
pre -qualified no less than three (3) design -build contractors eligible to submit a
proposal to City as the design -build contractor for the Parking Project;
• Within two hundred ten (210) calendar days of the Date of Agreement, City issues
an RFP for the services of a design -build contractor;
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• Within two hundred seventy (270) calendar days of the Date of Agreement, City
enters into a contract for a design build contractor for the design and construction
of the Parking Project;
• Prior to the Outside Date with respect to the Closing of the Theatre Property, City
will acquire the Parking Parcel.
Notwithstanding the foregoing, Developer understands, acknowledges and agrees that
City is not making any representation or warranty that City will undertake or complete any
City Action and that City has no obligation whatsoever to undertake or complete any of
the City Actions noted above in furtherance of the Parking Project. Further, Developer
understands, acknowledges and agrees that even if City enters into a contract with a
design build contractor for the design and construction of the Parking Project, City may
condition the award of said contract or the provision of certain services therein, upon the
Closing of the Theatre Property.
If the City cannot or does not elect to undertake or complete any or all of the City Actions
noted above in furtherance of the Parking Project in accordance with the times set forth
above, said decisions or inactions by City shall not constitute a Default by City or
Successor Agency under this Agreement. In the event City does not acquire the Parking
Parcel and award and enter into a contract with a design build contractor for the design
and construction of the Parking Project prior to the Outside Date for Closing the Theatre
Property, Successor Agency and Developer shall have the right to terminate this
Agreement.
In the event City acquires the Parking Parcel and develops and constructs the Parking
Project, the Parties shall use good faith efforts to coordinate their development and
construction activities in relation to the Project on the Theatre Property and the City's
Parking Project on the Parking Parcel. By way of example, the Parties shall undertake the
following:
• From the Date of Agreement until the City's award of the design -build contract, the
Parties shall participate in periodic "coordination" meetings with the Parties
respective design professionals throughout the design of the Project on the
Theatre Property and the Parking Project on the Parking Parcel;
• The Parties shall immediately notify each other of any perceived potential
construction conflict between the Project on the Theatre Property and Parking
Project on the Parking Parcel and cooperate in the reasonable resolution of that
conflict; and
• Following the City's award of the design -build contract the Parties shall participate
in periodic "coordination" meetings with their respective design professionals and
contractors/subcontractors regarding the design and construction of the
Developer's Project on the Theatre Property and the City's Parking Project on the
Parking Parcel.
5. DEFAULTS AND REMEDIES.
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5.1 Default Remedies - General. Subject to permitted extensions of time as
provided in Section 6.2, failure by either Party to perform any action or covenant required
by this Agreement within the time periods provided herein following Notice and expiration
of any applicable cure period, shall constitute a "Default" under this Agreement. The
failure by a Party to satisfy one or more of the Successor Agency Conditions Precedent,
City Conditions Precedent or Developer Conditions Precedent as set forth in Sections
2.4, 2.5 and 2.6, respectively, shall not be a Default hereunder, but the failure to act in Y
good faith and exercise reasonable good faith efforts to satisfy any such condition c
precedent shall constitute a Default following delivery of a Notice of Default and an m
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opportunity to cure as set forth herein. A Party claiming a Default shall give written Notice w
of Default to the other Party specifying the Default complained of. Except as otherwise E
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expressly provided in this Agreement, the claimant shall not institute any proceeding N
against the other Party, and the other Party shall not be in Default if (a) in the case of a 'w
monetary Default, such Party cures the monetary Default within ten (10) days following
receipt of such Notice of Default, or (b) in the case of a non -monetary Default, such Party
cures, corrects or remedies the non -monetary default within thirty (30) days following N
receipt of such Notice of Default, or if the non -monetary default cannot reasonably be
cured within such thirty- (30) day period, said Party commences to cure the non -monetary
Default within said thirty- (30) day period and thereafter completes such cure, correction E
or remedy with diligence. w
5.2 Default Resolution and Legal Actions.
(1) Informal Default Resolution. If, following notice and an opportunity to
cure pursuant to Section 5.1 a Default remains outstanding, before institution of legal
action, the Parties shall attempt to resolve the Default in accordance with this Section
5.2(1) as a condition precedent to the filing of any action at law or equity. It is the express
intent of the Parties to attempt to resolve all Defaults arising out of or relating to this
Agreement or a breach thereof by reasonable, business -like negotiations between the
Parties without resorting to litigation. However, unless the Parties agree otherwise, and
regardless of the size or nature of the Default, the Parties shall not cease or delay
performance of their obligations under this Agreement while the Default remains
outstanding.
Successor Agency, City or Developer may call a meeting for resolution of any
outstanding Default. The meeting shall be held on a date within three (3) working days of
the date of a written request by any Party, which written request shall specify the nature of
and extent of the Default to be resolved and any proposed resolution thereof ("Request
to Resolve Dispute"). Unless otherwise agreed to amongst the Parties, the meeting
shall be held at the administrative offices of the City. The foregoing notwithstanding, the
meeting shall be held at the Mixed Use Property if the ability to view the Mixed Use
Property or the Project will serve to resolve the Default.
The meeting shall be attended by representatives of the Successor Agency, City
and Developer and their respective consultants, contractors, subcontractors or other
parties with information relevant to the nature, extent and resolution of the Default. The
Parties' representatives attending the meeting shall have all requisite authority to resolve
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and settle the Default. The Parties shall consider retaining the services of a mediator to
help resolve and settle the Default; however, each Party reserves its discretion whether to
engage the services of a mediator. The costs of any mediator agreed to by the Parties
shall be shared equally. Failure of either Party to agree to the use of a mediator shall not
excuse the other Party from its obligation to attend the meeting in an attempt to resolve
and settle the Default. The meeting shall be subject to California Evidence Code Section
1152 and the parties hereby agree that any and all information or communications shared
or disclosed during said meeting shall be subject to said provision.
If the Default remains outstanding sixty (60) calendar days after the date of the
Request to Resolve Dispute, then either Party may, in addition to any other rights or
remedies, institute any action at law or in equity to cure, correct, prevent or remedy the
Default. The Parties agree that any applicable statute of limitation period that has not
otherwise expired shall be tolled during the sixty (60) calendar day period.
(2) Institution of Legal Actions. Except as otherwise specifically
provided herein, upon the occurrence of a Default, the non -defaulting Party shall have the
right, in addition to any other rights or remedies, to institute any action at law or in equity to
cure, correct, prevent or remedy any Default, or to recover damages for any Default, or to
obtain any other remedy consistent with the purpose of this Agreement. Such legal
actions must be instituted in the Superior Court of the County of Los Angeles, State of
California, or in the Federal District Court for the Central District of the State of California.
Notwithstanding anything herein to the contrary, neither Party shall have the right to
recover any consequential or special damages in the event of a Default by the other
Party.
(3) Liquidated Damages in the Event of Developer Failure to Close
Escrow on the Theatre Property. SUBJECT TO NOTICE AND EXPIRATION OF
APPLICABLE CURE PERIODS AND ANY PERMITTED EXTENSIONS OF TIME AS
PROVIDED IN THIS AGREEMENT, IF ESCROW FAILS TO CLOSE AS REQUIRED
UNDER THIS AGREEMENT BECAUSE OF A DEFAULT BY DEVELOPER (A
"CLOSING DEFAULT"), THE SUCCESSOR AGENCY MAY SUFFER DAMAGES AND
IT IS IMPRACTICABLE AND INFEASIBLE TO FIX THE ACTUAL AMOUNT OF SUCH
DAMAGES. THEREFORE, CONSIDERING ALL THE CIRCUMSTANCES EXISTING
ON THE DATE OF THIS AGREEMENT, IN THE EVENT OF A CLOSING DEFAULT,
SUCCESSOR AGENCY SHALL BE ENTITLED TO RETAIN DEVELOPER DEPOSIT.
THE DEVELOPER DEPOSIT SHALL SERVE AS LIQUIDATED DAMAGES TO THE
SUCCESSOR AGENCY FOR A CLOSING DEFAULT. THE VALUE OF THE
DEVELOPER DEPOSIT CONSTITUTES A REASONABLE ESTIMATE OF THE
DAMAGES THAT THE SUCCESSOR AGENCY WOULD INCUR IN THE EVENT OF A
CLOSING DEFAULT. RETENTION OF THE DEVELOPER DEPOSIT SHALL BE THE
SUCCESSOR AGENCY'S SOLE AND EXCLUSIVE REMEDY AGAINST DEVELOPER
IN THE EVENT OF A CLOSING DEFAULT, AND THE SUCCESSOR AGENCY WAIVES
ANY AND ALL RIGHT TO SEEK OTHER RIGHTS OR REMEDIES AGAINST
DEVELOPER ON ACCOUNT OF A CLOSING DEFAULT, INCLUDING WITHOUT
LIMITATION, SPECIFIC PERFORMANCE AND MONETARY DAMAGES. THE
LIQUIDATED DAMAGES PROVIDED FOR HEREIN IS NOT INTENDED AS A
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FORFEITURE OR PENALTY WITHIN THE MEANING OF SECTIONS 3275 OR 3369 OF
THE CALIFORNIA CIVIL CODE, BUT IS INTENDED TO CONSTITUTE LIQUIDATED
DAMAGES TO THE SUCCESSOR AGENCY PURSUANT TO SECTIONS 1671, 1676
AND 1677 OF THE CALIFORNIA CIVIL CODE. SUCCESSOR AGENCY WAIVES THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. BY PLACING ITS
INITIALS BELOW, DEVELOPER AND SUCCESSOR AGENCY SPECIFICALLY
CONFIRM THE ACCURACY OF THE STATEMENTS MADE ABOVE, THE
REASONABLENESS OF THE AMOUNT OF LIQUIDATED DAMAGES AGREED UPON,
AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO
EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES
OF THIS LIQUIDATED DAMAGES PROVISION.
INITIALS:
SUCCESSOR AGENCY DEVELOPER
(4) Acceptance of Service of Process. In the event that any legal action
is commenced against Successor Agency or City, service of process on Successor
Agency shall be made by personal service upon the Secretary of Successor Agency, and
service of process on City shall be made by personal service upon the City Clerk of City,
or in such other manner as may be provided by law. In the event that any legal action is
commenced against Developer, service of process on Developer shall be made in any
manner as may be provided by law.
5.3 Termination. In addition to the termination of this Agreement provided for
under Sections 2.8, 2.10, 2.15 and 4.9 above, this Agreement may be terminated: (i) if
there is an uncured Default, after Notice from the Party not in default and expiration of all
cure periods, (ii) if there is a failure of the Joint Condition Precedent, or (iii) if there is a
failure of an express Developer Condition Precedent, Successor Agency Condition
Precedent or City Condition Precedent (which is not waived by the Party whom the
condition benefits) by timely Notice from the Party whom the condition benefits. If
requested by Successor Agency, upon termination of this Agreement, Developer shall
promptly execute and deliver to Successor Agency a quitclaim deed, in recordable form,
as to the Theatre Property.
Upon termination of this Agreement due to failure of the Joint Condition Precedent
or by Successor Agency or Developer pursuant to Sections 2.10, 2.15 or 4.9, Developer
shall be entitled to a refund of the Developer Deposit and neither Party shall have any
further liability, claim or obligation to the other. Accordingly, by initialing in the space
provided below, as of the Date of Agreement, the Parties expressly waive and release
each other from any and all manner of Claims or other compensation whatsoever, in law
or equity, of whatever kind or nature, whether known or unknown, direct or indirect,
foreseeable or unforeseeable, absolute or contingent, now existing or which may in the
future arise, including but not limited to claims for specific performance, equitable
estoppel, lost business opportunities or economic advantage, and any and all form of
damages such as compensatory, special, consequential or punitive, as a result of failure
of the Joint Condition Precedent or Successor Agency or Developer terminating this
Agreement as provided by Sections 2.8, 2.10, 2.15 or 4.9, specifically including any and
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all rights under California Civil Code Section 1542, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
INITIALS:
DEVELOPER SUCCESSOR AGENCY CITY
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5.4 Successor Agency Option to Repurchase, Reenter and Repossess. 0Cw
(1) As to Theatre Property. Following the Closing and subject to notice
and opportunity to cure under Section 5.1 and applicable Force Majeure Delay under
Section 6.2, Successor Agency shall have the additional right, at its option, to repurchase, 00
reenter and take possession of the Theatre Property if after conveyance of title to the U)
Theatre Property, Developer shall: i
(a) Fail to Commence Construction of the Project within the time
set forth on the Schedule of Performance, as extended by Force Majeure Delay(s); or
(b) Abandon or substantially suspend construction of the Project
for a period of 90 consecutive days after Commencement of Construction, as extended
by Force Majeure Delay(s).
(2) Such rights to repurchase, reenter and repossess, to the extent
provided in this Agreement and Grant Deed, shall be subordinate and subject to and be
limited by and shall not defeat, render invalid or limit:
(a) Any mortgage, deed of trust or other security instrument
permitted by this Agreement (including, without limitation, any assignment of rents and
leases); or
(b) Any rights or interests provided in this Agreement for the
protection of the holder of such mortgages, deeds of trust or other security instruments.
(3) To exercise its right to repurchase, reenter and take possession with
respect to the Theatre Property, Successor Agency shall pay to Developer in cash an
amount equal to:
(a) The Purchase Price for the Theatre Property; plus
(b) The actual hard costs incurred by Developer and paid or owed
to third parties for labor and materials for the construction of the improvements existing on
the Theatre Property at the time of the repurchase, reentry and repossession; plus
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(c) The actual soft costs incurred by Developer and paid or owed
to third parties in connection with the design and permitting of the improvements existing
on the Theatre Property at the time of the repurchase, reentry and repossession and/or
contemplated to be developed on the Theatre Property; plus
(d) All other costs and expenses incurred by Developer and paid
or owed to third parties in connection with this Agreement and/or the design, permitting,
construction, leasing and/or financing of the improvements existing on the Theatre
Property at the time of the repurchase, reentry and repossession and/or contemplated to
be developed on the Theatre Property; less
(e) Any actual income withdrawn or made by Developer from the
Theatre Property or the improvements thereon; less
(f) The total outstanding amount of any mortgages, deeds of
trust or other liens encumbering the Theatre Property that are superior to Successor
Agency's repurchase option at the time of the repurchase, reentry and repossession.
In order to exercise such purchase option, Successor Agency shall, subject to the
instruments and provisions described above, give Developer Notice of such exercise and
Developer shall, within 60 days after Developer's receipt of such Notice, provide
Successor Agency with a detailed accounting of all of Developer's costs incurred as
provided above. Successor Agency, within 30 days thereafter, shall pay to Developer in
cash all sums owing pursuant to this Section 5.4 (3), if any, and Developer shall
thereupon execute and deliver to Successor Agency a grant deed transferring to
Successor Agency all of Developer's interest in the Theatre Property for which Successor
Agency's repurchase option applies. If Developer conveys any portion of the Theatre
Property to Successor Agency pursuant to the terms of this Section 5.4 (3), then
Successor Agency shall be charged with all knowledge it had regarding the Theatre
Property before execution of this Agreement and all information provided to Successor
Agency by Developer up to and including the time of conveyance.
Successor Agency acknowledges that it shall use its independent judgment and
make its own determination as to the scope and breadth of the due diligence investigation
which it shall make relative to the Theatre Property, or applicable portion thereof, to be
reacquired by the Successor Agency pursuant to Successor Agency's exercise of its
repurchase option.
Successor Agency's rights under this Section 5.4(3), and as set forth in the Grant
Deed, are assignable by Successor Agency to City in accordance with Section 6.3, and
shall terminate upon Final Completion. Upon Final Completion, Successor Agency shall
cause City, as successor by assignment to the Successor Agency in accordance with
Section 6.3, to execute, acknowledge and record the Quitclaim Deed -Final Completion
evidencing the termination of the repurchase option under this Section 5.4(3), as set forth
in the form attached hereto as Exhibit G-1 and incorporated herein.
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5.5 Rights and Remedies Are Cumulative. Except as specified otherwise in this
Agreement, the rights and remedies of the Parties are cumulative, and the exercise by
either Party of one or more of such rights or remedies shall not preclude the exercise by it,
at the same or different times, of any other rights or remedies for the same default or any
other default by the other Party, except as otherwise expressly provided herein.
5.6 Inaction Not a Waiver of Default. Except as specified otherwise in the
Agreement, any failures or delays by either Party in asserting any of its rights and
remedies as to any Default shall not operate as a waiver of any Default or of any such
rights or remedies, or deprive either such Party of its right to institute and maintain any
actions or proceedings which it may deem necessary to protect, assert or enforce any
such rights or remedies.
6. GENERAL PROVISIONS.
6.1 Notices, Demands and Communications Between the Parties. Any
approval, disapproval, demand, document or other notice ("Notice") which either Party
may desire to give to the other Party under this Agreement must be in writing and shall be
given by certified mail, return receipt requested and postage prepaid, personal delivery,
or reputable overnight courier (but not by facsimile or email), to the Party to whom the
Notice is directed at the address of the Party as set forth below, or at any other address as
that Party may later designate by Notice.
To Successor City of Santa Clarita/Successor Agency
Agency/City: Office of the City Manager/Executive Director
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Kenneth W. Striplin, City
Manager/Executive Director
With a copy to: City of Santa Clarita/ Successor Agency
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Thomas Cole, Director of
Community Development
and: City of Santa Clarita/ Successor Agency
Office of the City Attorney/General Counsel
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
To Developer:
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Attention: Joseph Montes, City
Attorney/General Counsel
Laemmle Newhall, LLC
11523 Santa Monica Blvd.
Los Angeles, CA 90025
Attention: Greg Laemmle
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With copies to: Serrano Development Group
500 North Brand Boulevard, Suite 2120
Glendale, CA 91203
Attention: Jason Tolleson, Principal
And
Elkins Kalt Weintraub Reuben Gartside LLP
2049 Century Park East, Suite 2700
Los Angeles, CA 90067
Attention: Keith Elkins
Phone No.: (310) 746-4401
E-mail: kelkins@elkinskalt.com
Any Notice shall be deemed received on the date of delivery if delivered by
personal service, on the date of delivery or refused delivery as shown by the return receipt
if sent by certified mail, and on the date of delivery or refused delivery as shown by the
records of the overnight courier if sent via nationally recognized overnight courier.
Notices sent by a Party's attorney on behalf of such Party shall be deemed delivered by
such Party.
6.2 Enforced Delay; Extension of Times of Performance. Performance by
either Party hereunder shall not be deemed to be in Default, and all performance and
other dates specified in this Agreement shall be extended, where delays are due to: (i)
war and insurrection; (ii) strikes, lockouts and labor disputes; (iii) riots, floods,
earthquakes, fires, casualties, acts of God and acts of the public enemy; (iv) epidemics,
quarantine restrictions, freight embargoes, and governmental restrictions or priority; (v)
delays in issuance of any Project Approvals, entitlements or permits necessary to
develop any improvements contemplated to be developed on the Theatre Property, or
applicable portion thereof; (vi) litigation and arbitration, including court delays; legal
challenges to this Agreement, the Project Agreements, the Project Approvals, or any
other approval required for the Project or any initiatives or referenda regarding the same;
(vii) environmental conditions, pre-existing or discovered, delaying the construction or
development of the Theatre Property or any portion thereof; (viii) unusually severe
weather or unseasonable inclement weather; (ix) acts or omissions of the other Party or
any of its members, managers, officers, agents, employees, affiliates or other
representatives; or acts or failures to act or delay in acting of any public or governmental
agency or entity (except that acts or failures to act of Successor Agency shall not excuse
performance by Successor Agency); or (x) moratorium (each a "Force Majeure Delay').
An extension of time for any such cause shall be for the period of the enforced
delay and shall commence to run from the time of the commencement of the cause, if
Notice by the Party claiming such extension is sent to the other Party within 30 days of the
commencement of the cause. If Notice is sent after such 30 day period, then the
extension shall commence to run no sooner than 30 days prior to the giving of such
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Notice. Notwithstanding any provision of this Agreement to the contrary, the lack of
funding to commence and/or complete the Project shall not be the basis for a Force
Majeure Delay.
Times of performance under this Agreement may also be extended in writing by the
Successor Agency and Developer as agreed to in the sole discretion of each Party
("Agreed Extension of Performance"). The Executive Director may agree to no more
than a cumulative total of one hundred eighty (180) calendar days extension of time for
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performance under this Agreement as an Agreed Extension of Performance. In no event
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shall a Force Majeure Delay, Force Majeure Delays or Agreed Extension of Performance
extend the Outside Date for Closing by more than one hundred eighty (180) calendar
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days. The foregoing notwithstanding, the Outside Date for Closing of the Theatre
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Property shall be extended by the Executive Director to the same extent the "Outside
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Date" for "Closing" of the Mixed Use Property is extended due to an "Environmental Force
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Majeure Delay" in accordance with, and as those terms are defined in, the Mixed Use
PSA.
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6.3 Successors and Assigns; Assignment to City. Subject to the restrictions on
Developer Transfers set forth in Section 1.3 above, all of the terms, covenants and
conditions of this Agreement shall be binding upon Developer and Successor Agency and
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their respective successors and assigns. Whenever the term "Developer" is used in this
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Agreement, such term shall include any permitted successors and assigns as herein
provided.
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Successor Agency's rights and obligations as set forth in Section 5.4 of this
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Agreement, and as reflected in the Grant Deed, with respect to the option to repurchase,
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reenter and repossess the Theatre Property in the event of a violation thereof, shall be
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assigned to City in accordance with the terms of the Assignment and Assumption
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Agreement in the form attached hereto as Exhibit F and incorporated herein. Developer
shall consent to said Assignment and Assumption Agreement, which shall be recorded
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concurrently with the Grant Deed at the Closing.
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6.4 Relationship Between Successor Agency, City and Developer. It is hereby
acknowledged that the relationship between Successor Agency, City and Developer is
not that of a partnership or joint venture and that Successor Agency, City and Developer
shall not be deemed or construed for any purpose to be the agent of the other.
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Accordingly, except as expressly provided herein or in the exhibits hereto, Successor
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Agency and City shall have no rights, powers, duties or obligations with respect to the
development, operation, maintenance or management of the Project.
6.5 Successor Agency or City Approvals and Actions. Whenever a reference is
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made herein to an action or approval to be undertaken by Successor Agency, the
Executive Director or his or her designee is authorized to act on behalf of Successor
Agency, unless specifically provided otherwise or the context requires otherwise.
Whenever a reference is made herein to an action or approval to be undertaken by City,
the City Manager or his or her designee is authorized to act on behalf of City, unless
specifically provided otherwise or the context requires otherwise.
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6.6 Counterparts. This Agreement may be signed in multiple counterparts,
each of which shall be deemed to be an original.
6.7 Integration. This Agreement, including the exhibits hereto, and the other
Project Agreements contain the entire understanding between the Parties relating to the
transactions contemplated by this Agreement. All prior or contemporaneous agreements,
understandings, representations and statements, oral or written, other than the other
Project Agreements, are merged in this Agreement and shall be of no further force or
effect. Each Party is entering this Agreement based solely upon the representations set
forth herein and upon each Party's own independent investigation of any and all facts
such Party deems material.
6.8 Brokerage Commissions. Successor Agency and Developer each
represents to the other that it has not engaged the services of any finder or broker and
that it is not liable for any real estate commissions, broker's fees, or finder's fees which
may accrue by means of the conveyance of the Theatre Property as described in this
Agreement, or the negotiation and execution of this Agreement. Each Party shall
indemnify, defend, protect and hold the other Party harmless from any and all Claims
based upon any assertion that such commissions or fees are allegedly due from the Party
making such representations.
6.9 Titles and Captions. Titles and captions are for convenience of reference
only and do not define, describe or limit the scope or the intent of this Agreement or of any
of its terms. References to section numbers are to sections in this Agreement, unless
expressly stated otherwise. References to specific section numbers shall include all
subsections which follow the referenced section.
6.10 Interpretation. As used in this Agreement, masculine, feminine or neuter
gender and the singular or plural number shall each be deemed to include the others
where and when the context so dictates. The words "include" and "including" shall be
construed as if followed by the words "without limitation." The Parties acknowledge that
each Party and his, her or its counsel have reviewed and revised this Agreement and that
the rule of construction to the effect that any ambiguities are to be resolved against the
drafting Party shall not be employed in the interpretation of this Agreement or any
document executed and delivered by either Party in connection with this Agreement.
6.11 Modifications. Any alteration, change or modification of or to this
Agreement, in order to become effective, shall be made in writing and in each instance
signed on behalf of each Party. Successor Agency and City, acting by and through the
Executive Director and City Manager upon the approval of the General Counsel and City
Attorney, respectively, may approve alterations, changes or modifications to this
Agreement and the Project Agreements without further approval of the City Council,
board of the Successor Agency or Oversight Board, as may be requested by Developer's
construction lender or lenders, or as otherwise agreed to by the Parties, provided such
alterations, changes or modifications do not materially increase or decrease the legal,
equitable or financial obligations or rights of the Successor Agency or City hereunder,
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decrease the amount of the Purchase Price, or increase the amount of the Theatre
Development Grant.
6.12 Severability. If any term, provision, condition or covenant of this Agreement
or its application to any Party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term, provision,
condition or covenant to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable
to the fullest extent permitted by law.
6.13 Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day, and including the last day, unless the
last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term
"holiday" shall mean all holidays as specified in Sections 6700 and 6701 of the California
Government Code. If any act is to be done by a particular time during a day, that time
shall be Pacific Time Zone time.
6.14 Legal Advice. Each Party represents and warrants to the other the
following: they have carefully read this Agreement, and in signing this Agreement, they
do so with full knowledge of any right which they may have; they have received
independent legal advice from their respective legal counsel as to the matters set forth in
this Agreement, or have knowingly chosen not to consult legal counsel as to the matters
set forth in this Agreement; and, they have freely signed this Agreement without any
reliance upon any agreement, promise, statement or representation by or on behalf of the
other Party, or their respective agents, employees, or attorneys, except as specifically set
forth in this Agreement, and without duress or coercion, whether economic or otherwise.
6.15 Time of Essence. Time is expressly made of the essence with respect to
the performance by Successor Agency and Developer of each and every obligation and
condition of this Agreement.
6.16 Cooperation. Each Party agrees to cooperate with the other in this
transaction and, in that regard, shall execute any and all documents which may be
reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this
Agreement.
6.17 Conflicts of Interest. No Successor Agency or City Council member, official,
officer, employee or consultant of Successor Agency or City shall have any personal
interest, direct or indirect, in this Agreement, nor shall any such member, official, officer,
employee or consultant participate in any decision, or use their position or title to
influence a decision, relating to this Agreement which affects his personal interests or the
interests of any corporation, partnership or association in which he is directly or indirectly
interested.
6.18 Time for Acceptance of Agreement by Successor Agency and City. This
Agreement, when executed by Developer and delivered to Successor Agency and City,
must be authorized, executed and delivered by Successor Agency and City on or before
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ninety (90) days after signing and delivery of this Agreement by Developer or this
Agreement shall be void, except to the extent that Developer shall consent in writing to a
further extension of time for the authorization, execution and delivery of this Agreement.
Developer hereby acknowledges that the authorization, execution and delivery of this
Agreement by Successor Agency, requires the approval of the Successor Agency and
Oversight Board, and by City, requires the approval of the City Council.
6.19 Developer's Indemnity. Developer shall defend (with counsel reasonably c
acceptable to Successor Agency), indemnify, and hold Successor Agency and Successor m
Agency Parties, harmless from, all Property Claims and Claims to the extent caused by
Developer's negligence or willful misconduct, whether such negligence or willful a
misconduct be by Developer or by anyone directly or indirectly employed or contracted s
with by Developer, and whether such Property Claims or Claims shall accrue or be w
discovered before or after expiration or termination of this Agreement or Final V
Completion. Developer's indemnity obligations under this Section 6.19 shall not extend
to (i) Property Claims or Claims occasioned by the negligence or willful misconduct of N
Successor Agency or Successor Agency Parties, or (ii) any litigation regarding the validity
of this Agreement and the Project Approvals. Insurance limits shall not operate to limit 15
Developer's indemnity obligations under this Agreement. Notwithstanding anything to the E
contrary in this Section 6.19, any claims related to Initial Litigation Challenges shall be w
controlled exclusively by Section 6.20. Q
6.20 Cooperation in the Event of Leaal Challenae to Proiect Approvals. The
Parties may cooperate in the defense of any court action or proceeding instituted by a
third party or other governmental entity or official challenging the validity of any provision
of this Agreement or the Successor Agency's initial approval of this Agreement or any of
the Project Approvals ("Initial Litigation Challenge"), and the Parties shall keep each
other informed of all developments relating to such defense, subject only to confidentiality
requirements that may prevent the communication of such information. The foregoing
notwithstanding, the Successor Agency and City may choose not to defend any such
proceeding challenging the validity of any provision of this Agreement, the approval of this
Agreement, or any of the Project Approvals.
(1) Meet and Confer. If an Initial Litigation Challenge is filed, upon
receipt of the complaint, the Parties will have 20 days to meet and confer regarding the
merits of such Initial Litigation Challenge and to determine whether to defend against the
Initial Litigation Challenge, which period may be extended by the Parties' mutual
agreement so long as it does not impact any litigation deadlines. The Successor Agency
and Developer mutually commit to meet all required litigation timelines and deadlines.
The Parties may enter a joint defense agreement, which will include among other things,
provisions regarding confidentiality. The City Manager and Executive Director are
authorized to negotiate and enter such joint defense agreement in a form acceptable to
the City Attorney and General Counsel. Such joint defense agreement shall also provide
that any proposed settlement of an Initial Litigation Challenge shall be subject to the
Parties' approval, each in its reasonable discretion. If the terms of the proposed
settlement would constitute an amendment or modification of this Agreement, the
settlement shall not become effective unless such amendment or modification is
OAK #4852-2324-3305 v7 55
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approved by Developer, and by Successor Agency and City in accordance with
Applicable Laws, and Successor Agency and City reserves their full legislative discretion
with respect thereto.
6.21 Successor Agency's Indemnity. Successor Agency shall defend (with
counsel reasonably acceptable to Developer), indemnify, and hold Developer and
Developer's officers, agents, employees, principals, owners, managers, representatives,
contractors, subcontractors, consultants and attorneys (collectively "Developer
Indemnitees") harmless from and against any and all liabilities, obligations, losses,
damages, deficiencies, fines, penalties, costs and other expenses, including reasonable
attorneys' fees and court costs, excluding criminal liabilities and workers compensation
claims attributable to the Developer Indemnitees or claims or liabilities arising from the
gross negligence or willful misconduct of Developer Indemnitees, which result from the
use of all or a portion of the Theatre Property for public parking, farmer's market or other
City sponsored events or activities, or the UST Removal Work occurring prior to Closing.
6.22 Non -liability of Officials and Employees of Successor Agency and City. No
member, official or employee of Successor Agency or City shall be personally liable to
Developer, or any successor in interest, in the event of any Default or breach by
Successor Agency or City or for any amount which may become due to Developer or its
successors, or on any obligations under the terms of this Agreement. Developer hereby
waives and releases any claim it may have against the members, officials or employees
of Successor Agency or City with respect to any Default or breach by Successor Agency
or for any amount which may become due to Developer or its successors under the terms
of this Agreement.
6.23 Legal Fees. If any Party to this Agreement brings any action or suit against
another Party regarding any matter relating to or arising out of this Agreement, then all
Parties shall bear their own fees, costs and expenses incurred therein, including any and
all attorneys' fees.
6.24 Applicable Law; Venue. The laws of the State of California, without regard
to conflict of laws principles, shall govern the interpretation and enforcement of this
Agreement. The exclusive venue for any disputes or legal actions shall be the Superior
Court of California in and for the County of Los Angeles or the United States District
Court, Central District of California.
6.25 Survival. The Parties' indemnification and/or hold harmless obligations
under Sections 3.9, 3.10, 6.8, 6.19 and 6.21 and the Right of Entry Permit shall survive
the Closing or termination of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
SUCCESSOR AGENCY:
CITY OF SANTA CLARITA AS SUCCESSOR AGENCY TO THE
FORMER SANTA CLARITA REDEVELOPMENT AGENCY, a
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public entity
By:
Kenneth W. Striplin, Executive Director
APPROVED AS TO FORM:
LA
Joseph Montes, General Counsel
ATTEST:
CITY:
CITY OF SANTA CLARITA, a California municipal corporation
0
Kenneth W. Striplin, City Manager
APPROVED AS TO FORM:
an
Joseph Montes, City Attorney
ATTEST:
By:
City Clerk
DEVELOPER:
LAEMMLE NEWHALL, LLC, a California limited liability company
By:
Name:
Title:
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EXHIBIT A
LEGAL DESCRIPTION - OLD TOWN NEWHALL PROPERTY
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described as
follows:
PARCEL A: APN 2831-007-901 THROUGH 2831-007-907
PARCEL 1:
LOTS 3 TO 12 INCLUSIVE, BLOCK 16, TOWN OF NEWHALL, COUNTY OF LOS ANGELES, STATE
OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 53 PAGES 21 AND 22 OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THE NORTHWESTERLY 10 FEET OF SAID LOT 3.
ALSO EXCEPT A PORTION OF LOTS 11 AND 12, DESCRIBED AS FOLLOWS:
A SPANDREL SHAPED PARCEL OF LAND BOUNDED NORTHEASTERLY BY THE NORTHEASTERLY
LINE OF SAID BLOCK, BOUNDED SOUTHEASTERLY BY THE SOUTHEASTERLY LINE OF SAID
BLOCK, AND BOUNDED WESTERLY BY THE ARC OF A CURVE CONCAVE WESTERLY AND HAVING
A RADIUS OF 29.00 FEET, BEING TANGENT TO SAID NORTHEASTERLY AND SOUTHEASTERLY
LINES OF BLOCK 16, AS GRANTED TO THE CITY OF SANTA CLARITA, A MUNICIPAL
CORPORATION IN DEED RECORDED OCTOBER 17, 1997 AS INSTRUMENT NO. 97-1636116,
OFFICIAL RECORDS.
PARCEL 2:
LOTS 15 TO 22 INCLUSIVE, BLOCK 16, TOWN OF NEWHALL, COUNTY OF LOS ANGELES, STATE
OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 53 PAGES 21 AND 22 OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THE NORTHWESTERLY 10 FEET OF LOT 22.
ALSO EXCEPT THEREFROM THE PORTIONS OF SAID LOTS DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST WESTERLY CORNER OF SAID LOT 24; THENCE SOUTH 320 30,15"
EAST ALONG THE SOUTHWESTERLY LINE OF SAID LOTS, A DISTANCE OF 250 FEET TO THE
MOST SOUTHERLY CORNER OF SAID LOT 15; THENCE NORTH 570 30' 15" EAST ALONG THE
SOUTHEASTERLY LINE OF SAID LOT 15, A DISTANCE OF 20.00 FEET; THENCE NORTH 320 30'
15" WEST, PARALLEL WITH SAID SOUTHWESTERLY LINE OF SAID LOTS, A DISTANCE OF
125.08 FEET; THENCE NORTHWESTERLY ALONG A TANGENT CURVE TO THE RIGHT, HAVING A
RADIUS OF 360 FEET, THROUGH AN ANGLE OF 200 18' 17" A DISTANCE OF 127.58 FEET TO A
POINT IN THE NORTHWESTERLY LINE OF SAID LOT 24; THENCE SOUTH 570 29' WEST
THEREON, A DISTANCE OF 42.37 FEET TO THE POINT OF BEGINNING.
PARCEL 3:
THAT CERTAIN ALLEY IN BLOCK 16, IN THE TOWN OF NEWHALL, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 53 PAGES 21 AND 22 OF
MISCELLANEOUS RECORDS, ADJOINING SAID PARCEL 1 HEREOF ON THE SOUTHWEST AND
ADJOINING SAID PARCEL 2 HEREOF ON THE NORTHEAST AS VACATED BY ORDER OF BOARD
OAK 94852-2324-3305JI EXHiBiTA-1
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OF SUPERVISORS MAY 14, 1946. A CERTIFIED COPY OF SAID ORDER WAS RECORDED MAY 20,
19461N BOOK 23158 PAGE 382, OFFICIAL RECORDS.
EXCEPTING THEREFROM THAT PORTION OF SAID ALLEY ADJOINING LOTS 11 AND 12 ON THE
SOUTHWEST.
EXCEPT FROM PARCEL 1, PARCEL 2 AND PARCEL 3 HEREOF, ALL MINERALS, OIL, GAS AND
OTHER HYDROCARBON SUBSTANCES IN AND UNDER OR THAT MAY BE PRODUCED FROM A
DEPTH BELOW 500 FEET FROM THE SURFACE OR THE ABOVE DESCRIBED LAND, WITHOUT
RIGHT OF ENTRY UPON THE SURFACE OF THE ABOVE DESCRIBED REAL PROPERTY FOR THE
PURPOSE OF MINING, DRILLING OR EXTRACTING SUCH MINERALS, OIL, GAS AND OTHER
HYDROCARBON SUBSTANCES OF SAID LAND TO A DEPTH OF 500 FEET BELOW THE SURFACE
HEREOF, AS GRANTED TO HAMMOND-CALIFORNIA REDWOOD CO, A CORPORATION
RECORDED APRIL 18, 1958 IN BOOK D-76 PAGE 749, OFFICIAL RECORDS.
PARCEL B: APN 2831-007-900 AND 2831-007-908
PARCEL 1
LOTS 13 AND 14 IN BLOCK 16, TOWN OF NEWHALL, IN THE CITY OF SANTA CLARITA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 53 PAGES 21 AND
22 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
PARCEL 2:
ALL THAT PORTION OF THE 20 FOOT ALLEY, AS VACATED IN SAID BLOCK 16, TOWN OF
NEWHALL, IN THE CITY OF SANTA CLARITA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
ADJOINING ABOVE PARCEL 1 ON THE NORTHEAST.
PARCEL 3
LOTS 23 AND 24 AND THE NORTHWESTERLY 10 FEET OF LOT 22 IN BLOCK 16, TOWN OF
NEWHALL, IN THE CITY OF SANTA CLARITA COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 53 PAGES 21 AND 22 OF MISCELLANEOUS RECORDS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAD COUNTY.
ALSO THE SOUTHWEST 30 FEET OF THE ALLEY VACATED ADJOINING SAID LOTS ON THE
NORTHEAST.
EXCEPT THEREFROM THAT PORTION OF SAID PROPERTY INCLUDED WITHIN THE STATE
HIGHWAY AS DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED IN BOOK 13340
PAGE 180, OFFICIAL RECORDS OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION OF SAID LOT 24, WITHIN THE FOLLOWING
DESCRIBED BOUNDARIES:
BEGINNING AT THE MOST NORTHERLY CORNER OF THAT CERTAIN PARCEL OF LAND
DESCRIBED IN DEED TO THE STATE OF CALIFORNIA FOR A PUBLIC HIGHWAY, RECORDED ON
APRIL 27, 1935 IN BOOK 13340 PAGE 180, OFFICIAL RECORDS, IN THE OFFICE OF SAID
RECORDER; THENCE NORTHEASTERLY ALONG THE NORTHEASTERLY PROLONGATION OF THE
NORTHWESTERLY LINE OF SAID CERTAIN PARCEL OF LAND, A DISTANCE OF 6.50 FEET;
THENCE SOUTHERLY IN A DIRECT LINE 13.63 FEET TO A POINT IN THE EASTERLY BOUNDARY
OAK 44852-2324-3305 v] EXH I BIT A-2
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OF SAID CERTAIN PARCEL OF LAND DISTANT SOUTHERLY THEREON 10 FEET FROM THE POINT
OF BEGINNING; THENCE NORTHERLY ALONG SAID EASTERLY BOUNDARY 30 FEET TO SAID
POINT OF BEGINNING.
PARCEL 4
LOTS 1, 2 AND THE NORTHWESTERLY 10 FEET OF LOT 3 IN BLOCK 16, TOWN OF NEWHALL, IN
THE CITY OF SANTA CLARITA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 53 PAGES 21 AND 22 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
ALSO THE NORTHEAST 10 FEET OF THE ALLEY VACATED ADJOINING SAID LOTS ON THE
SOUTHWEST.
EXCEPT THEREFROM THAT PORTION OF SAID LOT 1, WITHIN THE FOLLOWING DESCRIBED
BOUNDARIES:
BEGINNING AT THE MOST NORTHERLY CORNER OF SAID LOT; THENCE SOUTHEASTERLY
ALONG THE NORTHEASTERLY LINE OF SAID LOT, A DISTANCE OF 17 FEET; THENCE WESTERLY
IN A DIRECT LINE 24.04 FEET TO A POINT IN THE NORTHWESTERLY LINE OF SAID LOT,
DISTANT SOUTHWESTERLY THEREON 17 FEET FROM THE POINT OF BEGINNING; THENCE
NORTHEASTERLY ALONG SAID NORTHWESTERLY LINE 17 FEET TO SAID POINT OF
BEGINNING.
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OLD TOWN MINED -USE Design WHA
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OAK #4852-2324-3305 v7
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EXHIBIT C
Recording requested by, and when
recorded return to:
The City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, California 91355
Attention: City Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103,27383
ne
THEATRE OPERATING COVENANT
THIS THEATRE OPERATING COVENANT (this "Agreement") is entered into this
day of 2016 ("Date of Agreement") by and between the City of Santa
Clarita, a California municipal corporation (the "City") and Laemmle Newhall, LLC, a
California limited liability company (herein referred to as "Operator"). City and Operator
are referred to herein individually as a "Party and collectively as the "Parties."
WHEREAS, pursuant to that certain Purchase, Sale and Grant Agreement dated
as of , 201, and executed by and between the Successor Agency to the
former Redevelopment Agency of the City of Santa Clarita, a public entity ("Successor
Agency"), City and Operator (the "PSA"), the City has agreed to provide to Operator,
upon the terms and conditions set forth in the PSA, consideration in an amount set forth in
the PSA (the "Theatre Development Grant") to assist Operator to acquire the Property,
defined below, and develop and construct a project (the "Project") which includes not
less than a six screen, 475 to 550 seat, multi -story movie theatre (the "Theatre
Component"), on real property to be sold by Successor Agency to Operator pursuant to
the PSA located in the City of Santa Clarita, California, more particularly described in
Exhibit A attached hereto and incorporated herein (the "Property");
WHEREAS, the PSA provides that Operator shall use the Theatre Component for
the purpose of providing a movie theatre, cinema or entertainment use, serving as a
venue for concerts, shows or programs of dance, musical, comedic, literary, art or other
such media, open to the public and, at Operator's election, available for private events,
including wedding events, receptions and banquets ("Entertainment Services"), and
that such restrictions on use shall be set forth in an instrument recorded in the Official
Records of the County of Los Angeles ("Official Records"); and
WHEREAS, the PSA provides that the City shall have a remedy for damages as
more particularly described in this Agreement if during the Term, as defined below, the
Theatre Component is used for any purpose other than for the provision of Entertainment
Services absent an excused closure or the advance written consent of City and such
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default continues for a period of thirty (30) days following City's delivery of written notice
of default to Operator.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows.
1. Restrictions on Use; Term. Operator covenants and agrees for itself and its
successors in interest, that during the Term, except as otherwise provided in this
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Agreement (including the last sentence of the first paragraph of this Section 1), the
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Theatre Component shall not be used for any purpose other than for the purpose of
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providing Entertainment Services, as defined above, unless and to the extent that City
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provides advance written approval for another use. The restrictions on use of the Theatre
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Component set forth in this Agreement shall commence on the date of recording of this
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Agreement in the Official Records ("Effective Date"), and shall continue in effect for a
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period of fifteen (15) years from the Effective Date ("Term"). This Agreement shall
automatically terminate and be of no further force or effect on the last day of the Term,
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and at Operator's request, City shall execute such termination instruments as Operator
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may request to confirm the termination of this Agreement. Notwithstanding the foregoing
or anything to the contrary contained in this Agreement, Operator shall be deemed to
satisfy its obligations under this Agreement so long as, during the first seven (7) years of
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the Term, it operates not less than (6) movie screens with 475 to 550 seats within the
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Theatre Component, and during the remainder of the Term, it operates not less than four
(4) movie screens with 200 to 300 seats within the Theatre Component.
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Operator covenants and agrees for itself and its successors in interest, that during the
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Term, no portion of the Project may be used for (i) uses prohibited in the Old Town
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Newhall Specific Plan ("Specific Plan"), or (ii) uses, as defined in the City of Santa Clarita
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Municipal Code ("Municipal Code") and/or Specific Plan, as follows:
• Hookah Bar/Cigar Club
• Adult Businesses
• Tattoo Parlors
• Massage Parlors
• Schools, Public or Private or Specialized
• Used Merchandise/Thrift Stores/Second Hand Stores
• Ambulance or Paramedic Dispatch
• Lodging: Hotel or Motel
• Personal Services, Restricted
Personal Services, Restricted, are defined here and/or in the Municipal Code or Specific
Plan as follows and accordingly such uses shall not be permitted in the Project:
• Check cashing stores or services
• Farmer's market (permanent)
• Fortune tellers
• Gun stores
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• Laundromats (self-service laundry)
• Cash, currency, and money transfer stores and services
• Palm and card readers
• Pawnshops
• Psychics
• Recycling Vending Machines as an Accessory Use
• Spas and hot tubs for hourly rental
• Tobacco paraphernalia stores
• Tattoo and body piercing services
2. Covenants Run with the Land. Operator hereby subjects its interest in the
Property to the covenants and restrictions set forth in this Agreement. Operator and the
City hereby declare their express intent that the covenants and restrictions set forth
herein shall be deemed covenants running with the land, and shall be binding upon and
inure to the benefit of the heirs, administrators, executors, successors in interest,
transferees, and assigns of Operator and City, regardless of any sale, assignment,
conveyance, transfer, lease or rental of the Property or the Project, or any part thereof or
interest therein; provided, however, notwithstanding anything to the contrary contained in
this Agreement, the covenants, restrictions and other terms and conditions of this
Agreement shall expire and be of no further force or effect, and thus shall not be binding
on the Property following the expiration of the Term. Any successor -in -interest to
Operator, including without limitation any purchaser, transferee or lessee of the Property
shall be subject to all of the restrictions and obligations imposed hereby through the
remainder of the Term (but not thereafter). Each and every contract, deed, ground lease
or other instrument affecting or conveying the Property or any part thereof, shall
conclusively be held to have been executed, delivered and accepted subject to the
covenants, restrictions, and obligations set forth herein for the duration of the Term,
regardless of whether such covenants, restrictions, and obligations are set forth in such
contract, deed, ground lease or other instrument. Operator agrees for itself and for its
successors that in the event that a court of competent jurisdiction determines that the
covenants herein do not run with the land, such covenants shall be enforced as equitable
servitudes against the Property in favor of City through the remainder of the Term.
3. Transfers. From the Effective Date and during the Term of this Agreement, subject
to the remaining provisions of this Section 3, Operator shall not transfer, sell, assign,
convey or lease the Theatre Component, or any part thereof or interest therein, without
the express written consent of City which may be granted or denied in its reasonable
discretion. For the purposes of this Agreement, the term "transfer" shall include any
significant change in the Control (as defined below) of Operator by any method or means.
During the Term, City may disapprove any transfer, sale, assignment, conveyance or
lease of the Theatre Component if, in the City's reasonable discretion, it is evident that (i)
the proposed replacement operator will not operate the Theatre Component at a standard
as existed as of the Effective Date, or (ii) the replacement operator does not have the
financial capability and operating experience equivalent to, or greater than, Operator, or
(iii) the replacement operator will not operate the Theatre Component in the condition,
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and at a quality level, substantially equivalent to or greater than the "art house" type and
quality level, as the case may be, as existed as of the Effective Date. Notwithstanding the
foregoing, City may approve a transfer, sale, assignment, conveyance or lease of the
Theatre Component to a replacement operator subject to such reasonable conditions
applicable during the Term as are necessary to address any objectionable transfer, sale,
assignment, conveyance or lease.
Notwithstanding any other provision of this Agreement to the contrary, each of following
transfers are permitted and shall not require City consent under this Agreement:
Any lien or encumbrance placed on the Property following the Date
of Agreement (i) to secure construction financing of the Project, or (ii) to secure
permanent financing of the Project to the extent said lien or encumbrance does not
exceed 75% of the value of the Property as improved by the Project as determined by a
lender's appraisal (provided that if such lender is not an institution, then such appraisal
shall be subject to the reasonable approval of the City);
A transfer of the Property or the membership interests in Operator to
an entity or entities in which Operator or Operator's Manager or Managing Member
retains control of such entity or entities. For the purposes of this definition, "control"
means the possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of an entity or a person, whether through the ownership of
voting securities, by contract, or otherwise, and the terms "controlling" and "controlled"
have the meanings correlative to the foregoing;
Any lease, sublease, or other transfer of the Theatre Component to
an Affiliate of Operator or of any components of the Property that are not part of the
Theatre Component, provided such transfers do not involve a subdivision of the Property.
For purposes of this Agreement, "Affiliate of Operator" shall have the same meaning as
"Affiliate of Developer" as defined in the PSA; and
Dedications or grants of easements or rights of way or other
non-financial encumbrances against the Property.
4. Default. Upon the occurrence of a Default, as defined herein, during the Term of
this Agreement and the expiration of any applicable cure period following notice of said
Default, Operator shall pay to City, as City's sole and exclusive remedy, the Unamortized
Theatre Development Grant (as defined below). During the first seven (7) years of the
Term, "Unamortized Theatre Development Grant" shall mean the sum of (a) the Theatre
Development Grant, minus (b) the product of 1/10 of the Theatre Development Grant
multiplied by the number of years, or fraction thereof prorated on a monthly basis, of
operation or Excused Closure of the Theatre Component during each of the first seven (7)
years of the Term. Upon the expiration of the seventh year of the Term, "Unamortized
Theatre Development Grant" shall mean the sum of (a) 30% of the Theatre Development
Grant, minus (b) the product of 1/8 of 30% of the Theatre Development Grant multiplied
by the number of years, or fraction thereof prorated on a monthly basis, of operation or
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Excused Closure of the Theatre Component during each of the remaining eight (8) years
of the Term.
Notwithstanding the foregoing or anything to the contrary contained in this Agreement,
Operator shall not be in default if the Theatre Component is closed and not operating due
to any of the following reasons (each an "Excused Closure"): (i) a change in ownership,
provided such closure and non -operation does not exceed 30 calendar days; (ii)
remodeling construction activities, provided Operator has a valid building permit for such
work issued by the City; (iii) war or insurrection; (iv) strikes, lockouts and labor disputes;
(v) riots, floods, earthquakes, fires, casualties, acts of God and acts of the public enemy;
(vi) epidemics, quarantine restrictions, freight embargoes, and governmental restrictions
or priority; (vii) environmental conditions, pre-existing or discovered, impeding the use
and occupancy of the Project; or (viii) unusually severe weather or unseasonable
inclement weather.
5. Miscellaneous.
5.1 Notices. Any notice or communication required hereunder between
Operator and City ("Notice") must be in writing, and may be given either personally, by
registered or certified mail (return receipt requested), or by Federal Express or other
similar courier promising overnight delivery. If personally delivered, a Notice shall be
deemed to have been given when delivered to the Party to whom it is addressed. If given
by registered or certified mail, such Notice shall be deemed to have been given and
received on the first to occur of (i) actual receipt by any of the addressees designated
below as the Party to whom Notices are to be sent, or (ii) five (5) days after a registered or
certified letter containing such Notice, properly addressed, with postage prepaid, is
deposited in the United States mail. If given by Federal Express or similar courier, a
Notice shall be deemed to have been given and received on the date delivered as shown
on a receipt issued by the courier. Any Party hereto may at any time, by giving ten (10)
days written Notice to the other Party hereto, designate any other address in substitution
of the address to which such Notice shall be given. Such Notices shall be given to the
Parties at their respective addresses set forth below:
Agency: Operator:
City of Santa Clarita Laemmle Newhall, LLC
23920 Valencia Boulevard, Suite 300 11523 Santa Monica Blvd.
Santa Clarita, CA 91355 Los Angeles, CA 90025
Attn: City Manager Attn: Greg Laemmle
5.2 Attorneys' Fees. If an action is brought to enforce the rights of a Party under
this Agreement, the prevailing Party shall be entitled to recover its costs of enforcement,
including reasonable attorneys' fees and court costs.
5.3 Binding Agreement. This Agreement supersedes all prior and
contemporaneous discussions, agreements and understandings between Operator and
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City with respect to the subject matter of this Agreement, and together with the PSA,
constitutes the entire agreement between Operator and City with respect thereto.
5.4 Amendments. This Agreement may be amended or modified only by a
written instrument executed by Operator and City.
5.5 No Assignment by City. City shall not have the right to assign its rights
under this Agreement without Operator's consent.
5.6 Governing Law; Venue. This Agreement shall be governed and construed
in accordance with the laws of the State of California, without reference to its choice of law
rules. The exclusive venue for any disputes or legal actions shall be the Superior Court of
California in and for the County of Los Angeles or the Federal District Court for the Central
District of the State of California.
5.7 Waivers. No waiver of any provision of this Agreement or any breach of this
Agreement shall be effective unless such waiver is in writing and signed by the waiving
Party, and any such waiver shall not be deemed a waiver of any other provision of this
Agreement or any other or subsequent breach of this Agreement.
5.8 Successors and Assigns. This Agreement shall be binding upon, and inure
to the benefit of, the Parties hereto and their respective successors, heirs, administrators
and assigns. Each reference herein to a specifically named Party shall mean a reference
to such Party and to such Party's successors and assigns.
5.9 Severability. If any term or provision of this Agreement, or the application of
any term or provision of this Agreement to a particular situation, is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining terms and
provisions of this Agreement, or the application of this Agreement to other situations, shall
continue in full force and effect unless amended or modified by mutual consent of the
Parties.
5.10 Construction. Section headings in this Agreement are for convenience only
and are not intended to be used in interpreting or construing the terms, covenants or
conditions of this Agreement. Capitalized terms used in this Agreement and not
otherwise defined in this Agreement shall have the meaning ascribed to such capitalized
terms in the PSA. This Agreement has been reviewed and revised by legal counsel for
Operator and Agency, and no presumption or rule that ambiguities shall be construed
against the drafting Party shall apply to the interpretation or enforcement of this
Agreement.
5.11 No Joint Venture. Operator and City hereby renounce the existence of any
form of agency relationship, joint venture or partnership between Operator and City and
agree that nothing contained herein or in any document executed in connection herewith
shall be construed as creating any such relationship between City and Operator.
5.12 Survival of Terms. Any indemnity provided for herein, and any other
provision of this Agreement which, by its terms, is to be performed after the Closing, shall
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survive the Closing until full performance thereof. The representations, warranties,
covenants, terms and conditions of this Agreement shall also survive the Closing.
5.13 Time. Time is of the essence of this Agreement and of the performance of
all the terms, covenants and conditions contained in this Agreement.
5.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which together shall c
constitute one agreement. m
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5.15 City Approvals and Actions. Whenever a reference is made herein to an E
action or approval to be undertaken by City, the City Manager or his or her designee is c
authorized to act on behalf of City, unless specifically provided otherwise or the context
requires otherwise.
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5.16. Recordation. This Agreement shall be recorded in the Official Records of 00
the County of Los Angeles following Final Completion of the Project in accordance with
the PSA. i
5.17 No Brokers. Each Party represents and warrants that it has not had any
dealings with any real estate broker, agent, or finder that is entitled to a commission, fee,
or other compensation in connection with this Agreement.
5.18 Legal Advice. Each Party represents and warrants to the other that they
have carefully read this Agreement, and in signing this Agreement, they do so with full
knowledge of any right which they may have; they have received independent legal
advice from their respective legal counsel as to matters set forth in this Agreement, or
have knowingly chosen not to consult legal counsel as to matters set forth in this
Agreement; and, they have freely signed this Agreement without any reliance upon any
agreement, promise, statement or representation by or on behalf of the other Party, or
their respective agents, employees, or attorneys, except as specifically set forth in this
Agreement, and without duress or coercion, whether economic or otherwise.
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IN WITNESS WHEREOF, the Parties have executed this Theatre Operating
Covenant as of the date first written above.
OPERATOR:
LAEMMLE NEWHALL, LLC, a California limited liability company
By:
[Name, Title]
CITY:
CITY OF SANTA CLARITA, a California municipal corporation
M
Kenneth W. Striplin, City Manager
Attest:
an
City Clerk
Approved as to form:
Joseph Montes, City Attorney
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California )
County of
On
) ss
before
(Name of Notary)
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California )
County of
On
) ss
before
(Name of Notary)
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
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Exhibit A
PROPERTY
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EXHIBIT D
RECORDING REQUESTED BY AND
AFTER RECORDATION MAIL TO:
Laemmle Newhall, LLC
11523 Santa Monica Boulevard
Los Angeles, CA 90025
Attention: Greg Laemmle
This document is exempt from the payment of a
recording fee pursuant to Government Code §§
6103, 27383
(Space Above This Line for Recorder's Use Only)
GRANT DEED
(With Covenants)
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Successor Agency to the former Redevelopment Agency of the City of
Santa Clarita, a public entity ("Grantor"), hereby grants to Laemmle Newhall, LLC, a
California limited liability company ("Grantee"), the real property (the "Property") located
in the City of Santa Clarita, County of Los Angeles, California, and more particularly
described in Attachment No. 1 attached hereto and incorporated in this grant deed
("Grant Deed") by reference. Grantor and Grantee are referred to herein as a "Party" and
collectively as the "Parties".
1. Covenants. Grantee expressly covenants and agrees for itself, its
successors and assigns and all persons claiming under or through it, that as to the
Property and any improvements constructed or to be constructed thereon, or any part
thereof, or alterations or changes thereto, Grantee and all such successors and assigns
and all persons claiming under or through it, shall use, devote, operate and maintain the
Property and the improvements thereon, and every part thereof, to the uses specified and
in accordance with that certain Purchase, Sale and Grant Agreement between Grantor,
Grantee and the City of Santa Clarita, a California municipal corporation, dated as of
, 201 ("PSA"), in accordance with the agreements and covenants set forth
in this Grant Deed. Capitalized terms used but not otherwise defined herein shall have
the meanings provided in the PSA.
2. Prior to Final Completion (as such term is defined in the PSA), the Grantee
shall not, except as permitted by the PSA, sell, transfer, convey, assign or lease the whole
or any part of the Property without the prior written approval of the Grantor. This
prohibition shall not be deemed to prevent the granting of easements or permits to
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facilitate the development of the Property or to prohibit or restrict the leasing of any part or
parts of a building or structure when said improvements are completed.
3. The Grantee covenants by and for itself and any successors in interest that
there shall be no discrimination against or segregation of any person or group of persons
on account of race, color, creed, religion, sex, marital status, national origin or ancestry in
the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property,
nor shall the Grantee itself or any person claiming under or through it establish or permit
any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the Property.
All deeds, leases or contracts made relative to the Property, the improvements
thereon or any part thereof shall contain or be subject to substantially the following
nondiscrimination clauses:
(a) In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming
under or through them, that there shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure
or enjoyment of the land herein conveyed, nor shall the grantee himself or herself, or any
person claiming under or through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the
land herein conveyed. The foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons claiming
under or through him or her, and this lease is made and accepted upon and subject to the
following conditions:
That there shall be no discrimination against or segregation of any person or group
of persons on account of race, color, creed, religion, sex, marital status, national
origin or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure
or enjoyment of the premises herein leased, nor shall the lessee himself or herself,
or any person claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessess or vendees in the premises herein leased."
(c) In contracts: "There shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion,
sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land, nor shall the transferee himself or herself, or
any person claiming under or through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
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number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the
land."
4. Successor Agency Option to Repurchase, Reenter and Repossess. Prior
to Final Completion (as such term is defined in the PSA), Grantor shall have the right, in
the event of certain specified uncured defaults under the PSA, to repurchase, reenter,
and take possession of, the Property referred to above, as provided in Section 5.4 of the
PSA. Such right to repurchase, reenter and repossess shall be subject and subordinate c
to and be limited by and shall not defeat, render invalid or limit: (a) any mortgage, deed of m
trust or other security instrument permitted by the PSA; or (b) any rights or interests
provided in the PSA for the protection of the holder of such mortgages, deeds of trust or E
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other security instruments. Such right to repurchase, reenter and repossess also shall be s
subject to all leases and licenses that may be entered into by Grantee or it successors or w
assigns, as lessor or licensor, as the case may be, affecting the Property, or applicable V
portion thereof. In the event Grantor exercises its right to repurchase, reenter or
repossess the Property, or applicable portion thereof, Grantor shall accept title to the N
Property, or applicable portion thereof, so repurchased or repossessed subject to such
mortgages, deeds of trust, other security instruments, leases and/or license agreements
previously entered into by Grantee or its successors or assigns to the extent permitted by E
the PSA. "w
5. Effect, Duration and Enforcement of Covenants.
(a) It is intended and agreed that the covenants and agreements set
forth in this Grant Deed shall be covenants running with the land and that they shall be, in
any event and without regard to technical classification or designation, legal or otherwise,
to the fullest extent permitted by law and equity, (i) binding for the benefit and in favor of
Grantor, its successors and assigns, as beneficiary; and (ii) binding against Grantee, its
successors and assigns to or of the Property and any improvements thereon or any part
thereof or any interest therein, and any Party in possession or occupancy of the Property
or the improvements thereon or any part thereof. The agreements and covenants herein
shall be binding on Grantee itself, each successor in interest or assign, and each Party in
possession or occupancy, respectively, only for such period as it shall have title to or an
interest in or possession or occupancy of the Property or part thereof. Anything herein to
the contrary notwithstanding, the Grantor's rights and interests under Section 4 in this
Grant Deed and under Section 5.4 of the PSA, including, without limitation, its right to
repurchase, reenter and take possession of the Property, or applicable portion thereof as
described in Section 4 above, and the Grantee's obligations under Section 4 of this Grant
Deed and under Section 5.4 of the PSA, shall terminate as to the Property upon the
issuance of a temporary certificate of occupancy by City with respect to the Property.
Upon the issuance of a temporary certificate of occupancy by City with respect to the
Property, the Grantor hereby quitclaims all rights and interests in the Property and the
Grantor shall have no further right to enforce any rights under Section 5.4 of the PSA with
respect to the Property. Accordingly, upon issuance of a temporary certificate of
occupancy by City, Grantor shall execute, acknowledge and cause to be recorded a
Quitclaim Deed -Final Completion, in the form set forth in Exhibit G-1 to the PSA,
evidencing the foregoing termination and quitclaim.
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(b) Grantor shall have
covenants of which it is stated to be the
and/or specific enforcement to cure an
subject to Section 5(c) below.
the right, in the event of
beneficiary, to institute an
alleged breach or violatio
nany and all of such
action for injunction
of such covenants,
(c) Grantee shall be entitled to written notice from Grantor and have the
right to cure any alleged breach or violation of all or any of the covenants set forth in this
Grant Deed; provided that Grantee shall cure such breach or violation within 30 days
following the date of written notice from Grantor, or in the case of a breach or violation not
reasonably susceptible of cure within 30 days, Grantee shall commence to cure such
breach or violation within such 30 day period and thereafter diligently to prosecute such
cure to completion within a reasonable time.
6. Mortgagee Protection. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Grant Deed shall defeat or render
invalid or in any way impair the lien or charge of any mortgage, deed of trust or other
financing or security instrument encumbering the Property as permitted by the PSA;
provided, however, that any successor of Grantee to the Property shall be bound by such
covenants, conditions, restrictions, limitations and provisions, whether such successor's
title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
7. The covenants against discrimination contained in paragraph 3 of this Grant
Deed shall remain in perpetuity.
8. The covenants contained in paragraphs 1, 2 and 3 of this Grant Deed shall
be binding for the benefit of Grantor and its successors and assigns, and any successor in
interest to the Property or any part thereof, and such covenants shall run in favor of the
Grantor and such aforementioned Parties for the entire period during which such
covenants shall be in force and effect, without regard to whether the Grantor is or remains
an owner of any land or interest therein to which such covenants relate. The Grantor and
such aforementioned Parties, in the event of any breach of any such covenants, shall
have the right to exercise all of the rights and remedies, and to maintain any actions at law
or suits in equity or other proper proceedings to enforce the curing of such breach. The
covenants contained in this Grant Deed shall be for the benefit of and shall be
enforceable only by the Grantor, its successors and assigns and such aforementioned
Parties.
9. Grantee hereby grants to Grantor the option to repurchase the Property
hereby conveyed by Grantor and all improvements subsequently constructed thereon
upon the terms and provisions more fully set forth in Section 5.4 of the PSA, which
provisions are incorporated herein by this reference thereto. As more fully provided in
Section 5.4 of the PSA:
(a) The term of the option shall commence upon the recordation of this
Grant Deed and shall continue until the date a temporary certificate of occupancy has
been issued by City.
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(b) The option shall only be exercisable by Grantor in each and every
one of the following circumstances:
(1) Grantee's failure to commence construction of the Project
improvements on the Property by the time set forth in the
Schedule of Performance (Exhibit E to the PSA), subject to
Section 6.2 of the PSA, and such failure is not cured within
thirty (30) days after written demand by the Grantor. For
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purposes of this provision, Grantee shall be deemed to
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"commence construction" when and only when Grantee has
commenced construction activities on the Property (which
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includes grading of the Theatre Property) pursuant to a
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building permit issued by the City for the construction of the
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Project improvements to be constructed on the Property as
V
described in the Project Approvals. As used herein, the terms
Project, Project Approvals, and Schedule of Performance
N
shall have the same meaning as provided in the PSA.
(2) Once construction has been commenced in accordance with
Subparagraph 9(b)(1) above, and subject to an event
described in Section 6.2 of the PSA, the abandonment or
substantial suspension of construction by Grantee, or
Grantee's failure to diligently prosecute construction of the
improvements through completion, as required by the PSA,
where such abandonment, suspension or failure has not been
cured within 90 days after written notice thereof from the
Grantor.
(3) If, at any time, Grantee shall, without the prior written consent
of Grantor, directly or indirectly, voluntarily or involuntarily, sell
or Transfer the Property. For the purpose of this paragraph,
the term "Transfer" shall have the same meaning as provided
in the PSA.
(c) Grantor's option shall be subordinate, and subject to, and be limited
by, and shall not defeat, render invalid, or limit:
(d) Any mortgage, deed of trust or other security instrument permitted by
the PSA;
(e) Any rights or interests provided in the PSA for the protection of the
holder of such mortgages, deeds of trust or other security instruments.
10. Amendments. Only the Grantor, its successors and assigns, and the
Grantee and the successors and assigns of the Grantee in and to all or any part of the fee
title to the Property shall have the right to consent and agree to changes or to eliminate in
whole or in part any of the covenants contained in this Grant Deed. For purposes of this
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Section, successors and assigns of the Grantee shall be defined to include only those
parties who hold all or any part of the Property in fee title, and shall not include a tenant,
lessee, easement holder, licensee, mortgagee, trustee, beneficiary under deed of trust, or
any other person or entity having an interest less than a fee in the Property and the
Project.
11. Assignment. Grantor's rights and obligations as set forth in this Grant Deed
and Section 5.4 of the PSA, may be assigned to the City of Santa Clarita, a California c
municipal corporation, in accordance with the terms of the Assignment and Assumption m
Agreement attached as Exhibit F to the PSA.
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12. Grantee's Acknowledgment. By its execution of this Grant Deed, Grantee o
has acknowledged and accepted the provisions hereof. w
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13. In the event of any express conflict between this Grant Deed and the PSA, W
then the provisions of this Grant Deed shall control. The foregoing notwithstanding, in the 00
event of any express conflict between the provisions of Section 9 of this Grant Deed and Lo
the PSA, then the provisions of the PSA shall control.
14. Counterparts. This Grant Deed may be executed in counterparts, each of
which shall be deemed an original and all of which taken together shall constitute one and
the same instrument.
OAK #4852-2324-3305 v7
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EXHIBIT D-6
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GRANTOR:
Successor Agency to the former
Redevelopment Agency of the City of Santa
Clarita, a public entity
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Date: 201_ By: c
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Kenneth W. Striplin, Executive
Director
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[SIGNATURE MUST BE NOTARIZED]
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ATTEST: 15
Secretary
APPROVED AS TO FORM:
Joseph Montes, General Counsel
Date:
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GRANTEE:
LAEMMLE NEWHALL, LLC, a California
limited liability company
201 _ By:
EXHIBIT D-7
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ACKNOWLEDGMENTS
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
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COUNTY OF ) m
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On 201_ before me, E
Notary Public, personally appeared c
who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the 00
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument. r
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
(seal)
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On 201_ before me,
Notary Public, personally appeared
, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
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I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
OAK #4852-2324-3305 v7 Acknowledgment
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On 201_ before me,
Notary Public, personally appeared
, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
OAK #4852-2324-3305 v7
Acknowledgment
(seal)
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ATTACHMENT NO. 1
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA
CLARITA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AND IS DESCRIBED
AS FOLLOWS:
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EXHIBIT E
SCHEDULE OF PERFORMANCE
NOTE: Capitalized terms used below shall have the meaning ascribed to such terms in
the Purchase, Sale and Grant Agreement ("Agreement") to which this Exhibit E is
attached. All of the dates and deadlines described below shall be subject to extension by
the Executive Director pursuant to Section 3.1 of the Agreement or "Force Majeure c
Delays" or "Agreed Extension of Performance" in accordance with Section 6.2 of the m
Agreement. Additionally, the Outside Date for Closing shall be extended due to an w
Environmental Force Majeure Delay in accordance with Section 6.2 of the Agreement. E
The provisions of the Schedule of Performance are intended as a convenient guideline for o
the Parties and are not intended to supersede or amend the referenced operative w
sections listed below. To the extent the operative sections of the Agreement require
performance "within the times set forth in the Schedule of Performance", then the dates
and deadlines set forth in this Schedule of Performance shall control. In the event of any 00
conflict between this Schedule of Performance and the Agreement, the Agreement shall
control. r
PERFORMANCE ITEM
DATE
I.
EXECUTION OF PSA
A.
Developer submits Organizational
Prior to execution of
Documents to Successor Agency. [Section
Agreement.
1.2 (3)(a)]
B.
Successor Agency considers Agreement
Within 14 days of Developer's
and, if approved, forwards recommendation
delivery to the Successor
to the Oversight Board.
Agency of acceptable
Agreement, approved as to
form by General Counsel.
C.
Oversight Board considers approval of
Within 30 days of Successor
Agreement.
Agency recommendation
D.
If approved by Oversight Board, Developer
Within 7 days of Oversight
executes Agreement.
Board approval
E.
If approved by Oversight Board, Successor
Within 7 days of Oversight
Agency executes Agreement.
Board approval
II.
DEVELOPER SITE INSPECTION/DUE
DILIGENCE PERIOD
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PERFORMANCE ITEM
DATE
A.
Developer completes independent
Upon earlier of (i) 30 days
investigation and provides written notice to
following receipt of notice of
Successor Agency approving or
completion of UST Removal
disapproving Site Condition. [Section 2.15]
Work by Mixed Use Developer,
or (ii) 5 days prior to Outside
Date for Close of Escrow.
B.
If Site Condition disapproved or deemed
Prior to Outside Date for Close
disapproved, Successor Agency or Agency
of Escrow.
may terminate Agreement. [Section 2.15]
III.
FINANCING
A.
Developer submits evidence of property
(1) 30 calendar days following
acquisition and construction equity and debt
Date of Agreement
financing ("Sources and Uses"). [Section
3.7]
(2) 30 calendar days following
approval of Project Approvals
(3) 30 calendar days following
Developer's receipt of a
commitment letter from its
construction lender
(4) no less than 5 calendar
days following Developer's
receipt of final loan documents
B.
Successor Agency approves Sources and
Within 30 days of Developer
Uses. [Section 3.7]
submittal of Sources and Uses
based on the milestones listed
above.
C.
Developer submits to Successor Agency
Within 60 days following
pre -appraisal of Project. [Section 3.7]
approval of Project Approvals.
D.
Developer submits to Successor Agency
Within 30 days following
final construction plan appraisal of Project.
Developer's submission of
[Section 3.7]
application and plans for all
building permits to City.
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PERFORMANCE ITEM
DATE
E.
Developer submits to Successor Agency
No later than 5 days prior to the
un -redacted guaranteed maximum price
Outside Date for Close of
construction contract for Project. [Section
Escrow.
3.7]
F.
Developer submits to Successor Agency
Within 60 days following
evidence of its loan submission for
approval of Project Approvals.
construction financing of Project. [Section
3.7]
G.
Developer submits to Successor Agency
No later than 5 days prior to the
evidence of approval of construction
Outside Date for Close of
financing of Project. [Section 3.7]
Escrow.
H.
Developer submits to Successor Agency
No later than 90 days following
evidence of its loan submission for
commencement of
permanent financing of Project. [Section
construction of Project.
3.7]
I.
Developer submits to Successor Agency
Prior to or concurrent with
evidence of approval of permanent
Substantial Completion of
financing of Project. [Section 3.7]
Project.
IV.
ESCROW / REVIEW OF TITLE
A.
Successor Agency and Developer open
Within 3 calendar days
Escrow and Developer deposits into Escrow
following the Date of
the Developer Deposit. [Sections 2.2 and
Agreement.
2.7]
B.
Successor Agency delivers to Developer a
Within 30 days following the
Title Report and all documents underlying
approval of the Certificate of
the Exceptions set forth in the Title Report
Compliance for the Theatre
for the Theatre Property. [Section 2.10]
Property.
C.
Developer approves or disapproves Title
Within 30 days following
Report, Exceptions and ALTA Survey.
Successor Agency's delivery of
[Section 2.10]
Title Report and all Exceptions
to Developer [Note: ALTA
Survey provided to Developer
as of Date of Agreement per
Section 2.13]
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PERFORMANCE ITEM
DATE
D.
Successor Agency removes disapproved
Within 30 days following
Exceptions, provides assurances
Successor Agency's receipt of
satisfactory to Developer that they will be
Developer's notice of
removed, or indicates Exceptions will not be
disapproval.
removed. [Section 2.10]
E.
Developer notifies Successor Agency of
Within 15 days following
acceptance of Exceptions or intention to
Successor Agency's
terminate Agreement. [Section 2.10]
notification that Exceptions will
not be removed.
V.
CONDITIONS PRECEDENT TO CLOSING
A.
Oversight Board approves Agreement.
Prior to Outside Date for
[Section 2.3]
Closing.
B.
Successor Agency, City and Developer
Prior to Outside Date for
shall have each executed, acknowledged
Closing.
and delivered into Escrow, as appropriate,
the Grant Deed, Assignment and
Assumption Agreement, Theatre Operating
Covenant, Site Preparation Grant Escrow
Agreement, Operating Covenant Grant
Escrow Agreement and all other documents
required pursuant to Sections 2.9 (1), 2.9 (2)
and 2.9 (3). Escrow Agent shall have
executed the Site Preparation Grant Escrow
Agreement and Operating Covenant Grant
Escrow Agreement. [Sections 2.4 (2), 2.5
(2) and 2.6 (2)]
C.
Developer and Mixed Use Developer shall
Prior to Outside Date for
have executed, acknowledged and
Closing.
delivered into Escrow a document
conveying an easement to Developer for
ingress, egress and utilization of the
plaza/courtyard area of the Mixed Use
Property. [Section 2.6 (13)]
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PERFORMANCE ITEM
DATE
D.
City shall have delivered the Purchase Price
Prior to Outside Date for
and Developer shall have delivered all other
Closing.
closing costs to Escrow. [Sections 2.4 (3)
and 2.5 (3)]. City shall have delivered the
Site Preparation Grant and Operating
Covenant Grant to Escrow. [Section 2.6 (3)]
E.
Successor Agency and City shall have
Prior to Outside Date for
approved Developer's Sources and Uses
Closing.
pursuant to Section 3.7 [Sections 2.4 (4)
and 2.5 (4)]; Developer shall have secured
and provided evidence of ready and
available funds [Sections 2.4 (5), 2.5 (5) and
2.6 (7)]; and Developer's construction loan
shall have closed or be ready to close.
[Sections 2.4 (6), 2.5 (6) and 2.6 (7)]
F.
Developer shall have secured the Project
Prior to Outside Date for
Approvals, which shall be final and
Closing.
non -appealable and approved by Developer
[Sections 2.4 (8), 2.5 (8) and 2.6 (4)], and all
demolition, grading and building permits
shall be ready to be issued by City.
[Sections 2.4 (7), 2.5 (7) and 2.6 (5)]
G.
Developer shall have accepted or waived all
Prior to Outside Date for
disapproved Exceptions and approved the
Closing.
Condition of Title pursuant to Section 2.10.
[Section 2.6 (6)]
H.
Mixed Use Developer shall have completed
Prior to Outside Date for
the UST Removal Work and Developer shall
Closing.
have accepted or waived the Site Condition
pursuant to Section 2.15. [Sections 2.4 (10),
2.5(11) and 2.6(11)]
I.
Developer shall have provided to Successor
Prior to Outside Date for
Agency and City the insurance policies
Closing.
required by Section 3.8. [Sections 2.4 (9)
and 2.5 (9)]
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PERFORMANCE ITEM
DATE
J.
Neither Developer, Successor Agency nor
Prior to Outside Date for
City shall be in default under the
Closing.
Agreement. [Sections 2.4 (1), 2.5 (1) and
2.6 (1)]
K.
There shall be an absence of any pending
Prior to Outside Date for
governmental, administrative or legal
Closing.
proceeding which would materially and
adversely affect Developer's intended uses
of the Theatre Property, development of the
Project, or value of the Theatre Property.
[Section 2.6 (8)]
L.
There shall have been no material adverse
Prior to Outside Date for
change to the physical, environmental or
Closing.
title condition of the Theatre Property.
[Section 2.6 (9)]
M.
Successor Agency shall have demonstrated
Prior to Outside Date for
to Developer the ability to deliver fee title to
Closing.
the Theatre Property free of any parties in
possession. [Section 2.6 (10)]
N.
City shall have acquired fee title to the
Prior to Outside Date for
Parking Parcel and awarded a design build
Closing.
contract for the parking Project in
accordance with Section 4.9, and approved
and executed an easement deed in favor of
Mixed Use Developer for ingress and
egress over the Parking Parcel. [Sections
2.4 (11), 2.5 (10) and 2.6 (12)]
O.
Close of Escrow for conveyance of Theatre
Within 30 days after the
Property from Successor Agency to
satisfaction or waiver by the
Developer. [Section 2.8]
appropriate party, of the Joint
Condition Precedent,
Successor Agency Conditions
Precedent, City Conditions
Precedent and Developer
Conditions Precedent.
P.
Outside Date for Closing. [Section 2.8]
March 31, 2018
VI.
ENTITLEMENT PROCESS
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PERFORMANCE ITEM
DATE
Land Use Approvals/Design Review
A.
Developer submits administrative draft
Within 300 days of the Date of
Design Review packet to City. [Section 3.3]
Agreement.
B.
City provides comments to Developer on
Within 30 days following City's
administrative draft Design Review packet
receipt of administrative draft
(DRC).
Design Review packet.
C.
Developer submits Final Design Review
Within 30 days following
packet to City.
receipt of City comments on
administrative draft Design
Review packet.
D.
City determines if Final Design Review
Within 21 days following City's
packet is complete.
receipt of Final Design Review
packet.
E.
City publishes Public Noticing for Planning
21 days prior to the next
Commission Meeting, if needed.
available Planning
Commission meeting date
following City's determination
that Final Design Review
packet is complete. The
Planning Commission meets
once a month and does not
meet in August.
F.
If needed, Planning Commission meets,
Within 30 days of the date of
considers and takes action on Final Design
the publication of the public
Review application.
hearing notice.
Certificate of Compliance
A.
Developer prepares plat map and legal
Concurrent with land use
description of Theatre Property.
approval/design review.
B.
City considers Certificate of Compliance.
Concurrent with land use
approval/design review.
Grading/Earthwork
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PERFORMANCE ITEM
DATE
A.
Developer submits application and plans for
Within 90 days following
grading/earthwork permits. [Section 2.4.7,
approval of Land Use
3.1 and 3.4]
Entitlement/Design Review.
B.
City plan checks grading/earthwork plans
Within 45 days following
and submits correction comments to
Developer submission of
Developer.
grading application and plans
for grading permits.
C.
Developer corrects grading/earthwork plans
Within 30 days following City
and resubmits for approval.
submission of plan check
corrections.
D.
City rechecks grading/earthwork plans and
Within 45 days following
issues permit or identifies corrections
Developer submission of
necessary to obtain a permit.
corrected grading plans.
E.
If permit is not issued, Developer makes
Within 14 days following City's
corrections necessary for grading/earthwork
identification of corrections
plan approval and resubmits for permit.
necessary to obtain a permit.
F.
City issues grading/earthwork permit or
Within 30 days following
Agency issues notice of default to
Developer submission of
Developer.
corrected grading plans or
Close of Escrow, whichever is
later.
Construction Permits
A.
Developer shall submit application and plan
Within 120 days following
submissions for all building permits ("Plan
approval of Land Use
Submission"). [Section 2.4.8, 3.1 and 3.4]
Approvals/Design Review.
B.
City plan checks building plans of Plan
Within 45 days of receipt of
Submission and submits correction
Plan Submission.
comments to Developer.
C.
Developer makes all building plan
Within 45 days following
corrections and resubmits for comment.
receipt of City's plan check
corrections.
D.
City rechecks building plans and submits
Within 30 days following
correction comments to Developer.
receipt of Developer's
resubmission.
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PERFORMANCE ITEM
DATE
E.
Developer makes all building plan
Within 30 days following
corrections necessary for building plan
receipt of City's plan check
approval and resubmits for permit.
corrections.
F.
City issues building permit or identifies all
Within 15 days following
outstanding correction items necessary to
receipt of Developer's
obtain a building permit.
resubmission.
G.
Developer makes all building plan
Within 15 days following
corrections necessary to obtain building
receipt of City's plan check
plan approval and resubmits for permit.
corrections.
H.
City issues building permit or Agency issues
Within 15 days following
notice of default to Developer.
receipt of Developer's
resubmission, or Close of
Escrow, whichever is later.
VII.
CONSTRUCTION
A.
Developer commences grading/earthwork.
Within 150 days following
Close of Escrow.
B.
Developer commences construction of the
Within 150 days following the
Project. [Sections 3.1 and 3.5]
later of issuance of building
permits or completion of
grading/earthwork.
C.
Developer completes Project construction
Within 13 months following
(excludes tenant improvements for the
commencement of
retail/restaurant/commercial components).
construction.
Recordation of Quitclaim Deed
A.
City shall record Quitclaim Deed. [Sections
Within 30 calendar days
3.1 and 5.4]
following Final Completion of
the Project.
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EXHIBIT F
ASSIGNMENT AND ASSUMPTION AGREEMENT
RECORDING REQUESTED BY
WHEN RECORDED MAIL TO:
City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: City Manager
This document is exempt from the payment of a rec
fee pursuant to Government Code §§ 6103, 27383
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is
entered into as of the day of 201, by and among the Successor
Agency to the former Redevelopment Agency of the City of Santa Clarita, a public entity
("Assignor"), the City of Santa Clarita, a California municipal corporation ("Assignee"),
and Laemmle Newhall, LLC, a California limited liability company ("Developer").
Assignor, Assignee and Developer are referred to herein individually as a "Party" and
collectively as the "Parties".
RECITALS
A. Assignor, acting to carry out its obligations under the Community
Redevelopment Dissolution Law of the State of California (Health and Safety Code
§§ 34161 et seq.), and the terms of the Long Range Property Management Plan
("LRPMP") prepared by the Assignor dated December 17, 2013, and approved by the
Oversight Board to the Successor Agency of the Santa Clarita Redevelopment Agency
("Oversight Board"), on December 17, 2013, pursuant to Resolution No. 13-06, and the
State of California, Department of Finance ("Department"), by letter dated June 27, 2014,
Assignor has entered into that certain Purchase, Sale and Grant Agreement dated
2016, with Developer and Assignee ("PSA") with respect to the Site
B. The PSA provides, among other things, for (1) Assignor's sale of the Site to
Developer at fair market value, and (2) Developer's redevelopment of the Site with a
multi -screen (no less than six (6) screens) movie theatre, with ancillary office space and
ground floor retail, within a multi -story, approximately 20,800 square foot building
("Project").
C. Developer is the fee owner of the real property subject to the PSA more
particularly described in Exhibit 1 attached hereto and incorporated herein ("Site"),
pursuant to the terms of that certain Grant Deed dated , 201, between
Assignor, as Grantor, and Developer, as Grantee, recorded in the Official Records of Los
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Angeles County on 201, as Instrument No.
("Deed").
D. As more particularly set forth in the Deed and subject to the terms and
conditions of the PSA, Assignor retained the option to repurchase, reenter and repossess
the Site in the event (i) Developer failed to timely commence construction of the Project
improvements on the Site, (ii) once construction has been commenced, Developer
abandoned or substantially suspended construction of the Project improvements on the
Site, or (iii) Developer, without the prior written consent of Assignor, transferred the Site
prior to issuance of a temporary certificate of occupancy by City as defined in the PSA.
E. Assignor desires to assign to Assignee and Assignee desires to assume all
rights and obligations of Assignor under the Deed. Upon execution of this Agreement and
transfer to Assignee, Assignor desires to be released from any and all obligations under
the Deed.
AGREEMENT
NOW, THEREFORE, Assignor, Assignee and Developer hereby agree as follows:
1. Assignment by Assignor. Assignor hereby assigns, transfers and grants to
Assignee, and its successors and assigns, all of Assignor's rights, title and interest and
obligations, duties, responsibilities, conditions and restrictions under the Deed whether
accruing on or after the Effective Date (defined in Section 16 below) (collectively, "Rights
and Obligations").
2. Acceptance and Assumption by Assignee. Assignee, for itself and its
successors and assigns, hereby accepts such assignment and assumes all such Rights
and Obligations. Assignee agrees, expressly for the benefit of Developer, to comply with,
perform and execute all of the covenants and obligations of Assignee arising from or
under the Deed.
3. Release of Assignor. Assignee and Developer hereby fully release
Assignor from all Rights and Obligations. Assignor, Assignee and Developer hereby
acknowledge that this Agreement is intended to fully assign all of Assignor's Rights and
Obligations to Assignee, and it is expressly understood that Assignor shall not retain any
Rights and Obligations whatsoever. For avoidance of doubt, in no case shall this
Agreement release Assignor from any of its obligations under the PSA.
4. Substitution of Assignor. Assignee hereafter shall be substituted for and
replace Assignor in the Deed. Whenever the term "Grantor" appears in the Deed it shall
hereafter mean Assignee.
5. Assignor and Assignee Agreements and Waivers.
a. Assignee represents and warrants to Developer as follows:
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i. Authority. Assignee is a California municipal corporation, duly
organized under the laws of the State of California. Assignee has full right, power and
lawful authority to perform its obligations hereunder and the execution, performance and
delivery of this Agreement by Assignee has been fully authorized by all requisite actions.
ii. No Conflict. Assignee's execution, delivery and performance
of its obligations under this Agreement will not constitute a default or a breach under any
contract, agreement or order to which Assignee is a Party or by which it is bound.
iii. No Assignee Bankruptcy. Assignee is not the subject of any
voluntary or involuntary bankruptcy proceeding, and there has been no general
assignment or general arrangement for the benefit of any of Assignee's creditors, and no
trustee or receiver has been appointed to take possession of substantially all of the
assets of Assignee.
iv. Litigation. To the best of Assignee's knowledge, there are no
actions, suits, material claims, legal proceedings, or any other proceedings affecting the
Site or any portion thereof, at law or in equity before any court or governmental agency,
domestic or foreign.
V. No Assignee Member Financial Interest. No member, official
or employee of Assignee has any personal interest, direct or indirect, in this Agreement,
the Site, the improvements thereon, or in any other development project or business
venture involving Developer.
b. Developer hereby acknowledges and agrees that Assignor and
Assignee have not made, and will not make, any representation or warranty that the
assignment and assumption of the Deed provided for hereunder will have any particular
tax implications for Developer.
C. Assignor and Developer acknowledge and agree that the Rights and
Obligations have been fully assigned to Assignee by this Agreement and, accordingly,
that Assignee shall have the exclusive right to assert any claims against Developer with
respect to such Rights and Obligations. Accordingly, without limiting any claims of
Assignee under the Deed, Assignor hereby waives and releases any and all claims or
potential claims by Assignor against Developer to the extent arising directly or indirectly
out of the Deed.
6. Release of Rights and Obligations. Anything herein to the contrary
notwithstanding, the Assignee's rights and interests under Section 5.4 of the PSA and the
Deed, and the Developer's obligations under Section 5.4 of the PSA and the Deed, shall
terminate as to the Site upon Final Completion of the Project as provided in the PSA.
Upon Final Completion of the Project as provided in the PSA, the Assignee hereby
quitclaims all rights and interests in the Site and the Assignee shall have no further right to
enforce any rights under Section 5.4 of the PSA and the Deed with respect to the Site.
Accordingly, upon Final Completion of the Project as provided in the PSA, Assignee shall
execute, acknowledge and cause to be recorded a Quitclaim Deed -Final Completion, in
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the form set forth in Exhibit G-1 to the PSA, evidencing the foregoing termination and
quitclaim.
7. PSA, Deed, in Full Force and Effect. Except as specifically provided herein
with respect to the assignment, all the terms, covenants, conditions and provisions of the
PSA and the Deed are hereby ratified and shall remain in full force and effect.
8. Recording. Assignor shall cause this Agreement to be recorded in the
Official Records of Los Angeles County, California, and shall promptly provide conformed
copies of the recorded Agreement to Assignee and Developer.
9. Successors and Assigns. Subject to the restrictions on transfer set forth in
the Deed, all of the terms, covenants, conditions and provisions of this Agreement shall
be binding upon and shall inure to the benefit of the Parties hereto and their respective
heirs, successors and assigns.
10. Assignee Address for Notices.
The address of Assignee for the purpose of notices, demands and
communications shall be:
City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Kenneth W. Striplin, City Manager
With a copy to: City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Joseph Montes, City Attorney
11. Applicable Law/Venue. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, without reference to choice of law
provisions. Any legal actions under this Agreement shall be brought only in the Superior
Court of the County of Los Angeles, State of California.
12. Interpretation. All Parties have been represented by counsel in the
preparation and negotiation of this Agreement and this Agreement shall be construed
according to the fair meaning of its language. The rule of construction to the effect that
ambiguities are to be resolved against the drafting Party shall not be employed in
interpreting this Agreement. Unless the context clearly requires otherwise: (a) the plural
and singular numbers shall each be deemed to include the other; (b) the masculine,
feminine, and neuter genders shall each be deemed to include the others; (c) "shall,"
"will," or "agrees" are mandatory, and "may" is permissive; (d) "or" is not exclusive; and
(e) "includes" and "including" are not limiting.
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13. Headings. Section headings in this Agreement are for convenience only
and are not intended to be used in interpreting or construing the terms, covenants or
conditions of this Agreement.
14. Severability. Except as otherwise provided herein, if any provision(s) of this
Agreement is (are) held invalid, the remainder of this Agreement shall not be affected,
except as necessarily required by the invalid provisions, and shall remain in full force and
effect unless amended or modified by mutual consent of the Parties.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but all of which,
when taken together, shall constitute one and the same instrument, with the same effect
as if all of the Parties to this Agreement had executed the same counterpart.
16. Effective Date. The Effective Date of this Agreement shall be the date upon
which it is recorded in the Official Records of the Los Angeles County Recorder ("Effective
Date").
IN WITNESS WHEREOF, Assignor, Assignee and Developer have entered into
this Agreement as of the date first above written.
Date:
ATTEST:
Secretary
APPROVED AS TO FORM:
OAK #4852-2324-3305 v7
ASSIGNOR:
Successor Agency to the former
Redevelopment Agency of the City of Santa
Clarita, a public entity
201 _ By:
Kenneth W. Striplin, Executive
Director
[SIGNATURE MUST BE NOTARIZED]
EXHIBIT F-5
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Joseph Montes, General Counsel
201_
ATTEST:
City Clerk
APPROVED AS TO FORM:
Joseph Montes, City Attorney
201_
OAK #4852-2324-3305 v7
ASSIGNEE:
City of Santa Clarita, a California municipal
corporation
M
Kenneth W. Striplin, City Manager
[SIGNATURE MUST BE NOTARIZED]
DEVELOPER:
LAEMMLE NEWHALL, LLC, a California
limited liability company
In
EXHIBIT F-6
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Exhibit 1
Site Legal Description
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA
CLARITA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AND IS DESCRIBED
AS FOLLOWS:
OAK #4852-2324-3305 v7 Exhibit F - Exhibit 1
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Recording requested by, and when
recorded return to:
Laemmle Newhall, LLC
11523 Santa Monica Boulevard
Los Angeles, CA 90025
Attention: Greg Laemmle
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103,27383
EXHIBIT G-1
QUITCLAIM DEED
(Final Completion)
For good and valuable consideration, the receipt of which is hereby
acknowledged, the City of Santa Clarita, a municipal corporation ("Grantor"), successor
by assignment to the Successor Agency to the former Redevelopment Agency of the City
of Santa Clarita, a public entity ("Successor Agency"), pursuant to the terms of that
certain Assignment and Assumption Agreement between Grantor and Successor Agency
dated , 201, and recorded , 201, as Instrument No.
Official Records of County of Los Angeles, California, hereby quitclaims to Laemmle
Newhall, LLC, a California limited liability company ("Grantee"), all of Grantor's right, title,
and interest in and to the real property located in the City of Santa Clarita, County of Los
Angeles, California, and more particularly described in Attachment No. 1 attached hereto
and incorporated in this Quitclaim Deed by reference ("Property"). This Quitclaim Deed
is being recorded to extinguish and terminate that certain option to repurchase the
Property in favor of the Grantor, as set forth in the Grant Deed dated , 201,
and recorded , 201, as Instrument No. , Official Records of
County of Los Angeles ("Grant Deed"). Accordingly, Sections 2, 4, 5 and 9 of the Grant
Deed are hereby deleted in their entirety and shall no longer be of any force or effect.
Date:
OAK #4852-2324-3305 V7
GRANTOR:
CITY OF SANTA CLARITA, a municipal
corporation
201_ By:
EXHIBIT G-1
Kenneth W. Striplin, City Manager
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ATTEST:
, City Clerk
[SIGNATURE MUST BE NOTARIZED]
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Attachment No. 1
PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA
CLARITA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AND IS DESCRIBED
AS FOLLOWS:
OAK #4852-2324-3305 v7 EXHIBIT G —Attachment 1
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California )
ss
County of )
On , before
(Name of Notary)
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
OAK #4852-2324-3305 v7
EXHIBIT G-1
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Recording requested by, and when
recorded return to:
Laemmle Newhall, LLC
11523 Santa Monica Boulevard
Los Angeles, CA 90025
Attention: Greg Laemmle
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103,27383
EXHIBIT G-2
QUITCLAIM DEED
(Close of Escrow)
For good and valuable consideration, the receipt of which is hereby
acknowledged, the City of Santa Clarita, a California municipal corporation ("Grantor"),
hereby quitclaims to Laemmle Newhall, LLC, a California limited liability company
("Grantee"), all of Grantor's right, title, and interest in and to the real property located in
the City of Santa Clarita, County of Los Angeles, California, and more particularly
described in Attachment No. 1 attached hereto and incorporated in this Quitclaim Deed
by reference ("Property"). This Quitclaim Deed is being recorded to extinguish and
terminate all beneficial interest in the Property in favor of the Grantor, inclusive of any
interest held by Grantor in its capacity as successor to the housing assets and functions
previously performed by the former Redevelopment Agency to the City of Santa Clarita,
pursuant to Health and Safety Code §34176.
Date:
ATTEST:
GRANTOR:
CITY OF SANTA CLARITA, a municipal
corporation
201_ By:
Kenneth W. Striplin, City Manager
[SIGNATURE MUST BE NOTARIZED]
OAK #4852-2324-3305 V7 EXHIBIT G-2
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City Clerk
APPROVED AS TO FORM:
Joseph Montes, City Attorney
OAK #4852-2324-3305 v7 EXHIBIT G-3
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Attachment No. 1
PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA
CLARITA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AND IS DESCRIBED
AS FOLLOWS:
OAK #4852-2324-3305 v7 EXHIBIT G —Attachment 1
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California )
ss
County of )
On , before
(Name of Notary)
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
OAK #4852-2324-3305 v7
Acknowledgement
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EXHIBIT H
RIGHT OF ENTRY PERMIT
ISSUED TO: Laemmle Newhall, LLC ("Developer")
11523 Santa Monica Blvd.
Los Angeles, CA 90025
Attention: Greg Laemmle
Facsimile:
Phone:
Cell Phone:
PERMISSION IS HEREBY GRANTED to Developer and its agents, representatives,
officers, officials, employees, contractors, and subcontractors to enter upon the property,
as hereinafter defined, of the City of Santa Clarita as Successor Agency to the Santa
Clarita Redevelopment Agency, a public entity (`Owner"), subject to the conditions set
forth in this Right of Entry Permit ("Permit"):
Property. This Permit is limited to a portion of certain real property bound by Main
Street, Lyons Avenue, Railroad Avenue and Ninth Street in the City of Santa
Clarita, identified as a portion of Assessor Parcel Numbers 2831-007-900 through
2831-007-904, depicted in Exhibit A attached hereto and incorporated herein by
this reference (the "Property").
2. Purpose. This nonexclusive and temporary Permit is limited to the following
purposes:
Developer shall have the right of ingress and egress across the Property for the
sole purpose of undertaking geotechnical investigations, environmental sampling
and testing of soil and groundwater for the presence of hazardous materials,
environmental audits, storm water retention analysis, adequacy of utilities
including water, sewer, gas and electricity, and other investigations, studies and
analysis that Developer deems appropriate in order to compete its review,
inspection and investigation of the Property. Developer shall be solely responsible
for the handling, transportation and disposal of investigative derived waste from its
soil and groundwater sampling and testing activities and shall sign any manifests
for the disposal of such waste as the "Generator" thereof. Developer shall not
install any groundwater wells on the Property, nor shall Developer store any
investigative derived waste on the Property without Owner's prior written consent.
Developer shall provide Owner copies of all sampling and testing plans and all
OAK #4852-2324-3305 v7 EXHIBIT H-1
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results of its geotechnical investigations and environmental sampling and testing
of soil and groundwater.
For purposes of this Permit, "hazardous materials" means any substance,
material, or waste which is or becomes regulated by any local governmental
authority, the State of California, or the United States Government under any
Environmental Laws, including any material or substance which is defined as
hazardous, extremely hazardous, hazardous waste, extremely hazardous waste,
restricted hazardous waste, hazardous substance or hazardous material under
any Environmental Laws, including petroleum, or any fraction thereof, friable
asbestos, and polychlorinated biphenyls.
For purposes of this Permit, "Environmental Laws" means, collectively: (i) the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. § 9601, et seq., (ii) the Hazardous Materials Transportation
Act, as amended, 49 U.S.C. § 1801, et seq., (iii) the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. § 6901, et seq., (iv) the Federal Water
Pollution Control Act, as amended, 33 U.S.C. § 1251, etseq., (v) the Clean Air Act,
as amended, 42 U.S.C. § 7401, et seq., (vi) the Toxic Substances Control Act, as
amended, 15 U.S.C. § 2601, et seq., (vii) the Clean Water Act, as amended, 33
U.S. Code § 1251, et seq., (viii) the Oil Pollution Act, as amended, 33 U.S.C. §
2701, et seq., (ix) California Health & Safety Code § 25100, et seq. (Hazardous
Waste Control), (x) the Hazardous Substance Account Act, as amended, Health &
Safety Code § 25300, et seq., (xi) the Unified Hazardous Waste and Hazardous
Materials Management Regulatory Program, as amended, Health & Safety Code §
25404, et seq., (xii) Health & Safety Code § 25531, et seq. (Hazardous Materials
Management), (xiii) the California Safe Drinking Water and Toxic Enforcement Act,
as amended, Health & Safety Code § 25249.5, et seq., (xiv) Health & Safety Code
§ 25280, et seq. (Underground Storage of Hazardous Substances), (xv) the
California Hazardous Waste Management Act, as amended, Health & Safety Code
§ 25170.1, et seq., (xvi) Health & Safety Code § 25501, et seq., (Hazardous
Materials Response Plans and Inventory), (xvii) Health & Safety Code § 18901, et
seq. (California Building Standards), (xviii) the Porter -Cologne Water Quality
Control Act, as amended, California Water Code § 13000, et seq., (xix) California
Fish and Game Code §§ 5650-5656, (xx) the Polanco Redevelopment Act, as
amended, Health & Safety Code § 33459, et seq., (xxi) Health & Safety Code §
25403, et seq. (Hazardous Materials Release Cleanup), and (xxii) any other
federal, state or local laws, ordinances, rules, regulations, court orders or common
law related in any way to the protection of the environment, health or safety.
Owner agrees to allow Developer to use the Property in the manner described
above subject to the following conditions:
a. Developer shall not access the Property prior to 7:00 am or after 6:00 p.m. Monday
through Friday or on the weekend at any hour without the prior approval of the
Owner.
OAK #4852-2324-3305 v7
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b. Developer shall notify Owner via email no later than twenty-four (24) hours prior to
entry onto the Property and shall identify all individuals who will enter on the
property and the company for whom they are employed. Developer shall notify
Jason Crawford, Manager of Economic Development and Marketing at
Icrawford@santa-clarita.com, and Joseph Montes, General Counsel at
jmontes@bwslaw.com on behalf of Owner.
c. Developer shall commence any and all work or activities on or use of the Property
at its sole cost and expense and Owner shall not incur any cost or expense.
d. Developer shall perform all work in strict conformance with all Environmental
Laws, and no soil may be stockpiled on the Property and no equipment or
materials may be stored on the Property without Owner's prior written consent. To
the extent Developer's activities generate soil cuttings or spoils which must be
temporarily stockpiled, Developer shall promptly advise Owner of such fact, and
upon Owner's consent to temporarily place such waste on the Property, Developer
shall place visquene beneath and over any such temporarily stockpiled soils on the
Property.
e. Any and all Mechanic's Liens filed on account of the work performed by Developer
on the Property pursuant to this Permit shall be promptly cured by Developer's
payment thereof and the recording of applicable Release of Mechanic's Liens, or
Developer shall post a statutory mechanic's lien release bond in lieu thereof within
seven (7) days after the filing of each such Mechanic's Lien.
3. Term. Developer's right to utilize the Property shall commence upon execution of
this Permit by Owner and Developer and shall continue for a period of thirty (30)
calendar days thereafter, at which time this Permit shall expire. Unless terminated
by Owner or Developer as provided herein, this Permit shall automatically renew
for an additional thirty (30) calendar day period after expiration of the prior thirty
(30) calendar day period. Notwithstanding the foregoing, this Permit may be
terminated by Owner or Developer upon providing twenty-four (24) hours prior
written notice to the other. Upon termination of this Permit, Developer shall restore
the Property to its condition prior to Developer's entry and repair any damage to
the Property caused by their use of the Property.
4. Assumption of Risk and Releases. Each person entering upon the Property under
this Permit shall do so at its own risk. On behalf of itself and its agents,
representatives, assigns, heirs, spouses, successors -in -interest, executors,
administrators, employees, contractors and sub -contractors ("Releasors"),
Developer assumes all risk of entering the Property and agrees that the Owner,
the City of Santa Clarita, and their respective officers, agents, employees and
volunteers are released and shall not be liable in any manner for injury to or death
of Releasors or their respective officers, employees or agents or for damage to
property of Releasors arising from any cause. This release applies to all potential
future claims and Developer on behalf of itself and the Releasors agrees to waive
OAK #4852-2324-3305 v7
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any and all rights pursuant to Section 1542 of the California Civil Code, which
reads as follows:
"A general release does not extend to claims that the creditor does not know
or suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor."
5. Indemnification. Developer agrees on behalf of itself and its Releasors that the
Owner and the City of Santa Clarita shall not be liable for any bodily injury,
sickness, disease or death of any person or damages to any property or any
person pursuant to this Permit and that Developer shall be responsible for any
liability, cost, expenses or claim associated with injuries to or death of any person
or damage to property related directly or indirectly to any act or failure to act arising
from the activities under this Permit. Developer agrees on behalf of itself and its
Releasors to indemnify, defend and hold harmless the Owner and the City of
Santa Clarita and their respective officials, officers, employees, consultants,
agents and volunteers (collectively, the Indemnitees), from any and all actions,
claims and liability for any loss or damage, including, but not limited to, bodily
injury, sickness, disease or death of any person or damage to any property,
tangible or intangible, resulting from the execution of this Permit or the entry upon
the Property, and from all costs and expenses, including reasonable attorneys'
fees, arising there from, except for any claim arising from the sole negligence or
willful misconduct of an Indemnitee. This indemnification shall survive termination
of this Permit.
6. Liability Insurance. Developer shall at all times during the term of this Permit
maintain the following insurance coverage in connection with the use of the
Property by Developer and its agents, representatives, employees, contractors or
subcontractors.
a. Insurance: For the duration of the term, Developer shall procure and
maintain with an insurance company acceptable to Owner, the following
types of insurance (and limits) written on an occurrence basis:
COVERAGE LIMITS
Worker's Statutory
Compensation
Employer's Liability $2,000,000 each occurrence
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General Liability $2,000,000 combined single limit
for each occurrence, $5,000,000
(bodily injury & umbrella
property damage)
Automobile Liability
(bodily injury &
property damage)
Contractor's
Pollution Liability
$2,000,000 combined single limit
for each occurrence
$1,000,000 per accident or claim
b. Deductibles and Self -Insured Retentions: Any deductibles or self-insured
retentions must be declared to and approved by the Owner.
C. Other Insurance Provision: The general liability and automobile liability
policies are to contain, or be endorsed to contain, the following provision:
i. The Indemnitees are to be covered as additional insured as
respects: liability arising out of activities performed by or on behalf of
Developer under this Permit; products and completed operations of the
Developer; premises owned, occupied or used by Developer; or
automobiles owned, leased, hired or borrowed by Developer. The
coverage shall contain no special limitations on the scope of protection
afforded to the Indemnitees.
ii. For any claims related to this Permit, Developer's insurance
coverage shall be primary insurance as respects the Indemnitees. Any
insurance or self-insurance maintained by the Indemnitees shall be excess
of Developer's insurance and shall not contribute with it.
iii. Any failure to comply with reporting or other provisions of the policies
provided by Developer, including breaches of warranties, shall not affect
coverage provided to the Indemnitees.
iv. Developer's insurance shall apply separately to each insured against
whom claim is made or suit is brought.
V. Each insurance policy required shall be endorsed to state that
coverage shall not be suspended, voided, cancelled by either party,
reduced in coverage or in limits except after thirty (30) days prior written
notice by certified mail has been given to Owner.
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d. The Worker's Compensation and Employers Liability policies shall be
endorsed to provide Waivers of Subrogation waiving all rights of
subrogation against the Indemnitees.
e. Acceptability of Insurers: Insurance is to be placed with insurers admitted in
California with a current A.M. Best's rating of no less than A:VII.
f. Verification of Coverage: Developer shall furnish the Owner with original
endorsements effecting coverage required by this clause. The
endorsements are to be signed by a person authorized by that insurer to
bind coverage on its behalf. The endorsements are to be on forms utilized
by Developer's insurer in its normal course of business and are to be
received and approved by Owner before Developer enters upon and utilizes
the Property pursuant to this Permit.
g. Subcontractors: Developer shall include all subcontractors as insured
under its policies or shall furnish separate certificates and endorsements for
each subcontractor. All coverage for subcontractors shall be subject to all
of the requirements stated herein.
7. Assignment. Developer shall not assign or otherwise transfer any rights under this
Permit and any purported assignment or transfer shall be void and effectuate the
automatic revocation of this Permit.
8. Compliance with Laws. Developer shall obtain and maintain all permits and
approvals required for the activities under this Permit and shall comply with all laws
now in effect or that become effective during the term of this Permit.
9. No Dedication. Nothing contained in this Permit shall be deemed a gift or
dedication of any portion of the Property to or for the general public or for any
public purpose whatsoever. This Permit shall be strictly limited to and for the
purposes expressed within.
10. Rights Limited. This Permit shall not be construed to grant any real property or
other rights to Developer in the Property. Further, nothing herein shall preclude
Owner from using the Property or allowing third parties to utilize the Property in a
manner that would frustrate or impair Developer's use in accordance with this
Permit.
11. Governing Law; Attorneys' Fees. This Permit shall be construed and enforced in
accordance with and governed by the laws of the State of California. In the event
that either party institutes any action, suit or other dispute resolution proceeding
based on this Permit against the other party, each party shall be solely responsible
for all of their costs and expenses associated therewith including but not limited to
reasonable attorneys' fees and courts costs.
OAK #4852-2324-3305 v7
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3.f
12. Counterparts. This Permit may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same agreement.
13. Authority to Contract. Developer hereby represents and warrants to Owner that in
accordance with its by-laws and all operative rules and procedures, it has duly
authorized the undersigned officer of Developer to enter into and execute this
Permit and to carry out, fulfill and perform all promises, conditions and obligations
contained herein.
Developer: LAEMMLE NEWHALL LLC
an
Greg Laemmle, Principal
Date:
2016
Owner: CITY OF SANTA CLARITA AS SUCCESSOR AGENCY TO THE SANTA
CLARITA REDEVELOPMENT AGENCY, A PUBLIC ENTITY
M
Kenneth W. Striplin, Executive Director
Approved as to form:
Joseph M. Montes, General Counsel
OAK #4852-2324-3305 v7
EXHIBIT H-7
Date: 2016
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Attachment No. 1
PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA
CLARITA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AND IS DEPICTED
AS PARCEL 2 IN THE SITE MAP BELOW:
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EXHIBIT H - Attachment No 1
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EXHIBIT I
SITE PREPARATION GRANT ESCROW AGREEMENT
(Escrow Number: )
This Site Preparation Grant Escrow Agreement ("Agreement"), dated as of
201 is entered into by and among FIRST AMERICAN TITLE COMPANY
located at 655 North Central Avenue, 8t", Glendale, CA 91203, Attn: [NAME] ("Escrow
Agent'), the CITY OF SANTA CLARITA, a California municipal corporation ("City"),
and LAEMMLE NEWHALL, LLC., a California limited liability company ("Developer"),
with reference to the following facts:
RECITALS
A. Developer intends to develop improvements including a multi -screen
movie theatre, with ancillary office space and ground floor retail, within a multi -story,
approximately 20,800 square foot on a portion of certain real property bounded by
Lyons Avenue, Railroad Avenue, 9t" Street and Main Street in the City of Santa Clarita
California (the "Property"). The Property and the development thereof are collectively
referred to in this Agreement as the "Project."
B. In connection with the Project, Developer, City and the Successor
Agency to the Santa Clarita Redevelopment Agency are parties to that certain
Purchase, Sale And Grant Agreement, dated as of 2016 ("PSA") which
sets forth the terms and conditions relating to Developer's purchase and development
of the Property, which includes provisions for certain additional financial assistance to
Developer from City in connection with the development of an art -house type movie
theatre, provided certain specified conditions are satisfied.
C. Developer will shortly be initiating development of the Property and in
connection therewith has sought confirmation and assurance from the City that the
additional financial assistance of Six Hundred Thousand Dollars ($600,000) ("Site
Preparation Grant") as designated in the PSA is properly segregated and readily
available to be drawn upon in accordance with the terms and conditions of the PSA.
D. In connection therewith, City intends to deliver to Escrow Agent the Site
Preparation Grant contemporaneously with the execution of this Agreement. Escrow
Agent shall open an escrow ("Escrow") and hold the funds in a segregated interest
bearing account ("Escrow Account"). Any interest earned on the Site Preparation
Grant while within the Escrow Account shall not be added to the principal balance of
the Escrow Account and instead shall be disbursed to City, or used to pay fees, in
accordance with the provisions of this Agreement.
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E. Subject to satisfaction of the applicable conditions precedent to receipt of
such funds, Developer shall be entitled to periodic disbursements from the Site
Preparation Grant to reimburse Developer for costs in connection with acceptable Site
Preparation Costs involving the Project.
F. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the PSA.
Therefore, Escrow Agent, City and Developer agree as follows:
AGREEMENT
1. Escrow Account. Contemporaneously with the execution of this
Agreement, City shall deliver to Escrow Agent the Site Preparation Grant ($600,000)
for deposit into a segregated interest bearing Escrow Account. As of Final Completion
of the Project, up to a maximum of Eighty Thousand and 00/100 Dollars
($80,000,00)(the "Unexpended Permit Fee Grant") may be added to the Site
Preparation Grant in accordance with Section 3.6 of the PSA and applied to eligible
Site Preparation Costs. City shall deliver said amount, not to exceed the Unexpended
Permit Fee Grant, if any, to Escrow Agent for deposit into the Escrow Account within
sixty (60) days after Final Completion of the Project. Escrow Agent shall hold and
disburse the Site Preparation Grant in accordance with the terms of this Agreement.
2. CitV Approval for Disbursements. Developer shall obtain the consent
of City to any draw request for disbursement of any portion of the Site Preparation
Grant from the Escrow Account, in accordance with terms of this Agreement. City's
obligation to provide all or any portion of the Site Preparation Grant to Developer is
conditioned upon the satisfaction by Developer or waiver by City of each and all of the
following conditions precedent, which is solely for the benefit of City and which shall be
fulfilled or waived within the time period provided for herein:
(a) Site Preparation Grant Draw Request. Developer shall have submitted a
fully executed "Site Preparation Grant Draw Request", in the form attached hereto as
Exhibit B and incorporated herein by this reference, which contains ongoing
representations and warranties by Developer.
(b) Submission of Costs Reports. Developer shall provide City with the
Costs Reports of the actual Site Preparation Costs, as such terms are defined in
Exhibit A attached hereto and incorporated herein by this reference, incurred and paid
by Developer.
(c) Lien Releases. Along with the Cost Reports, Developer shall provide
City copies of conditional lien releases from its contractor and subcontractors for the
value of work represented by the Site Preparation Grant Draw Request.
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(d) No Default. Developer shall not be in default under the PSA and no
event shall have occurred which with the passage of time or giving of notice or both,
would constitute a default thereunder.
(e) Project Approvals. Developer shall have complied with all terms and
conditions of the Project Approvals applicable to the Project, to the extent such term or
condition is applicable as of the date of submission of the Site Preparation Grant Draw
Request.
(f). Construction of Project. Developer shall have Commenced Construction
of the Project.
3. Approval of Draw Requests. City shall notify Developer (and Escrow
Agent) of approval or disapproval of each Site Preparation Grant Draw Request within
fifteen (15) working days after receipt of the Site Preparation Grant Draw Request and
supporting Cost Reports and lien releases, using the Site Preparation Grant
Disbursement Approval Notice attached as Exhibit C. The Site Preparation Grant may
be disbursed in one or more disbursements, and each such disbursement shall be
made by Escrow Agent to Developer promptly following the receipt of the approved
Site Preparation Grant Disbursement Approval Notice (and in no event later than two
(2) business days).
4. Disbursement of Site Preparation Grant. Escrow Agent will disburse
the proceeds of the Site Preparation Grant, in accordance with this Agreement and to
an account (or in a manner) specified by Developer. Escrow Agent shall be entitled to
rely on City approved Site Preparation Grant Disbursement Approval Notice in
connection with the disbursement of funds to Developer. For the limited purpose of the
implementation of this Agreement by the Escrow Agent, the provisions of this
Agreement shall supersede any conflicting provisions of the PSA; provided, however,
nothing in this Agreement is intended to modify the rights and obligations of the parties
to the PSA.
5. Termination of Agreement. Upon complete disbursement of the Site
Preparation Grant in accordance with the terms of this Agreement, upon
reimbursement of all eligible Site Preparation Costs following commencement of
construction and installation of foundations on the Property, or upon notice to terminate
this Agreement provided to Escrow Agent in a signed writing by the parties hereto, this
Agreement will terminate and Escrow Agent shall undertake all appropriate action
(including any action reasonably requested by the parties hereto) to close the Escrow
Account. Any approved fees charged by Escrow Agent in connection with the
establishment of the Escrow Account and undertaking the activities stated within this
Agreement may be paid through the Site Preparation Grant and earned interest
thereon and, in the event such amount is insufficient to cover such fees, shall
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thereafter be the responsibility of Developer. Any unexpended portion of the Site
Preparation Grant and interest earned thereon remaining after termination of this
Agreement, if any, shall be paid to and returned to City.
6. Notices. All notices, demands, approvals and other communications
which are required to or may be given pursuant to this Agreement shall be in writing
and shall be delivered by personal delivery, overnight courier or registered or certified
U.S. mail, with return receipt requested, to the appropriate party at its address as c
follows: m
w
To City: City of Santa Clarita c
Office of the City Manager
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Kenneth W. Striplin, City Manager 0;
N
N
E-mail: kstriplin@santa-clarita.com
With a copy to: City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Thomas Cole, Director of
Community Development
E-mail: tcole@santa-clarita.com
and: City of Santa Clarita
Office of the City Attorney
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Joseph Montes, City Attorney
E-mail: jmontes@bwslaw.com
To Developer: Laemmle Newhall, LLC
11523 Santa Monica Blvd.
Los Angeles, CA 90025
Attention: Greg Laemmle
E-mail: gregl@laemmle.com
With copies to: Serrano Development Group
500 North Brand Boulevard, Suite 2120
Glendale, CA 91203
OAK #4852-2324-3305 v7
EXHIBIT 1-4
Packet Pg. 275
Attention: Jason Tolleson, Principal
E-mail: jtolleson@serranodevelopment.com
And
Elkins Kalt Weintraub Reuben Gartside LLP
2049 Century Park East, Suite 2700
Los Angeles, CA 90067
Attention: Keith Elkins
Phone No.: (310) 746-4401
E-mail: kelkins@elkinskalt.com
If to Escrow Agent:
[Name]
First American Title Company
655 North Central Avenue, 8t Floor
Glendale, CA 91203
Phone: (XXX) XXX-XXXX
E-mail: @
Any party may change its address for notice from time to time by written notice
to all other parties. If any communication is given by mail it will be deemed to be
effective for all purposes upon the earlier of (a) three (3) calendar days after deposit in
the U.S. Mail postage prepaid; or (b) actual receipt, as indicated by the return receipt;
or (c) if given by personal delivery or by overnight air courier, when delivered; or (d) if
given by email, when read by the recipient if an e-mail read receipt confirmation is
received by the sender.
7. Acceptance of Duties. Escrow Agent executes this Agreement in order
to agree to perform the duties imposed upon it by this Agreement.
8. Integration and Amendment. This Agreement supersedes all prior
discussions, negotiations, representations and agreements concerning the subject
matter hereof and may be amended only by a writing signed by City and Developer.
9. Counterparts. This Agreement may be signed in counterparts, each of
which shall be deemed an original, and all of which, taken together, shall constitute one
and the same instrument.
OAK #4852-2324-3305 v7
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City:
City Of Santa Clarita,
a municipal corporation
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APPROVED AS TO FORM:
Kenneth W. Striplin, City Manager Joseph Montes, City Attorney
(Signature page for Funding Agreement)
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Developer
LAEMMLE NEWHALL, LLC,
a California limited liability company
M
Its:
OAK #4852-2324-3305 v7
APPROVED AS TO FORM:
Elkins, Kalt, Weintraub, Reuben, Gartside
(Signature page for Funding Agreement)
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Escrow Agent:
FIRST AMERICAN TITLE COMPANY
By:
Name: 0
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EXHIBIT A
Site Preparation Grant. Subject to satisfaction of the applicable Conditions Precedent
set forth in this Agreement, City, pursuant to Site Preparation Grant Draw Requests,
supported by Cost Reports and line releases, submitted from time to time (but no more
often than monthly) by Developer prior to issuance of the temporary certificate of
occupancy, shall reimburse Developer for Site Preparation Costs in an amount not to
exceed SIX HUNDRED THOUSAND DOLLARS ($600,000) ("Site Preparation Grant").
The Site Preparation Grant may be disbursed in one or more disbursements, and each
such disbursement shall be made by City to Developer promptly following the City
Manager's approval of each Site Preparation Grant Draw Request, supported by Cost
Reports and lien releases.
Site Preparation Costs. As used herein and the PSA, Site Preparation Costs shall
mean actual out-of-pocket costs reasonably incurred by Developer after the Date of
Agreement, and paid to unaffiliated third parties in connection with the demolition of
existing improvements on the Property, and the clearing, grubbing and grading of the
Property and other site preparation work preparatory to building and constructing the
Project, including, without limitation, costs of remediating any existing site conditions,
including costs, fees or taxes associated with disposal of soils, geotechnical and
engineering consultants, contractors and materials. Costs associated with site
preparation end as soon as the first physical element of the foundation is installed.
Cost Reports. For the purpose of substantiating Site Preparation Costs, Developer shall
submit a statement of Site Preparation Costs expended as of the date of such statement
to the City Manager, including copies of all bills, statements, receipts, cancelled checks or
other evidence reasonably satisfactory to the City Manager of Developer's payment
thereof (each, a "Cost Report"). The City Manager's approval of any such Cost Report
shall not be unreasonably withheld, and in any event the City Manager shall approve or
disapprove any such Cost Report within fifteen (15) working days of receipt of the
applicable Site Preparation Grant Draw Request, supported by Cost Reports and lien
releases, together with such documentation as may be reasonably requested by the City
Manager in order to evaluate such Cost Report. If the City Manager disapproves any Cost
Report, the City Manager shall provide Developer with a reasonably detailed explanation
for such disapproval, and Developer shall submit additional documentation or evidence to
the City Manager for review.
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EXHIBIT B
SITE PREPARATION GRANT DRAW REQUEST
NO.
LAEMMLE NEWHALL, LLC., a California limited liability company ("Developer") hereby
submits the attached Costs Report and lien releases to the City of Santa Clarita, a
California municipal corporation ("City"), for the purpose of substantiating Site
Preparation Costs as defined in Section 3.6 (2) of the Purchase Sale and Grant
Agreement, dated as of , 2016 ("PSA"), and Exhibit A to Site Preparation
Grant Escrow Agreement, dated as of 2017.
In connection with this submission, the Developer makes the following representations as
of the date of this submission (Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the PSA.):
1) No Default. Developer is not in default under the PSA and no events have
occurred which with the passage of time or giving of notice or both, would constitute a
default thereunder.
2) Project Approvals. Developer has complied with all terms and conditions of
the Project Approvals applicable to the Project, to the extent such term or condition is
applicable as of the date of submission of this Site Preparation Grant Draw Request.
3) Construction of Project. Developer has Commenced Construction of the
Project and continues to diligently prosecute the construction of the Project to Final
Completion; and
4) Representations and Warranties. All representations and warranties of
Developer contained in the PSA are true and correct in all material respects.
LAEMMLE NEWHALL, LLC,
a California limited liability company
By:
Its:
Dated:
OAK #4852-2324-3305 v7
EXHIBIT B to EXHIBIT I
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EXHIBIT C
SITE PREPARATION GRANT DISBURSEMENT APPROVAL NOTICE
TO: Laemmle Newhall, LLC
11523 Santa Monica Blvd.
Los Angeles, CA 90025
Attention: Greg Laemmle
E-mail: gregl@laemmle.com
CC: First American Title Company
h
655 North Central Avenue, 8t Floor
Glendale, CA 91203
Attn: [Name]
E-mail: @
FROM: City of Santa Clarita
RE: Site Preparation Grant Escrow Agreement
Escrow No.:
Site Preparation Grant Draw Request No.
This shall serve as the undersigned's notice of:
APPROVAL of Site Preparation Grant Draw Request No.
DISAPPROVAL of Site Preparation Grant Draw Request No
following reasons:
CITY OF SANTA CLARITA
By:
Name:
Title:
Dated:
OAK #4852-2324-3305 v7
EXHIBIT C to EXHIBIT I
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EXHIBIT J
OPERATING COVENANT GRANT ESCROW AGREEMENT
(Escrow Number: )
This Operating Covenant Grant Escrow Agreement ("Agreement"), dated as of
201 is entered into by and among FIRST AMERICAN TITLE COMPANY
located at 655 North Central Avenue, 8t", Glendale, CA 91203, Attn: [NAME] ("Escrow
Agent'), the CITY OF SANTA CLARITA, a California municipal corporation ("City"),
and LAEMMLE NEWHALL, LLC., a California limited liability company ("Developer"),
with reference to the following facts:
RECITALS
A. Developer intends to develop improvements including a multi -screen
movie theatre, with ancillary office space and ground floor retail, within a multi -story,
approximately 20,800 square foot on a portion of certain real property bounded by
Lyons Avenue, Railroad Avenue, 9t" Street and Main Street in the City of Santa Clarita
California (the "Property"). The Property and the development thereof are collectively
referred to in this Agreement as the "Project."
B. In connection with the Project, Developer, City and the Successor
Agency to the Santa Clarita Redevelopment Agency are parties to that certain
Purchase, Sale And Grant Agreement, dated as of 2016 ("PSA") which
sets forth the terms and conditions relating to Developer's purchase and development
of the Property, which includes provisions for certain additional financial assistance to
Developer from City in connection with the development of an art -house type movie
theatre, provided certain specified conditions are satisfied.
C. Developer will shortly be initiating development of the Property and in
connection therewith has sought confirmation and assurance from the City that the
additional financial assistance of One Million Nine Hundred Eighty Thousand Dollars
($1,980,000) ("Operating Covenant Grant") as designated in the PSA is properly
segregated and readily available to be drawn upon in accordance with the terms and
conditions of the PSA.
D. In connection therewith, City intends to deliver to Escrow Agent the
Operating Covenant Grant contemporaneously with the execution of this Agreement.
Escrow Agent shall open an escrow ("Escrow") and hold the funds in a segregated
interest bearing account ("Escrow Account"). Any interest earned on the Operating
Covenant Grant while within the Escrow Account shall not be added to the principal
balance of the Escrow Account and instead shall be disbursed to City, or used to pay
fees, in accordance with the provisions of this Agreement.
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E. Subject to satisfaction of the applicable conditions precedent to receipt of
such funds, Developer shall be entitled to a one-time disbursement of the Operating
Covenant Grant.
F. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the PSA.
Therefore, Escrow Agent, City and Developer agree as follows:
AGREEMENT
1. Escrow Account. Contemporaneously with the execution of this
Agreement, City shall deliver to Escrow Agent the Operating Covenant Grant
($1,980,000) for deposit into a segregated interest bearing Escrow Account. Escrow
Agent shall hold and disburse the Operating Covenant Grant in accordance with the
terms of this Agreement.
2. CitV Approval for Disbursement. Developer shall obtain the consent
of City to draw the Operating Covenant Grant from the Escrow Account, in accordance
with terms of this Agreement. City's obligation to provide the Operating Covenant
Grant to Developer is conditioned upon the satisfaction by Developer or waiver by City
of each and all of the following conditions precedent, which is solely for the benefit of
City and which shall be fulfilled or waived within the time period provided for herein:
(a) Operating Covenant Grant Draw Request. Developer shall have
submitted a fully executed "Operating Covenant Grant Draw Request", in the form
attached hereto as Exhibit A and incorporated herein by this reference, which contains
ongoing representations and warranties by Developer.
(b) No Default. Developer shall not be in default under the PSA and no
event shall have occurred which with the passage of time or giving of notice or both,
would constitute a default thereunder.
(c) Project Approvals. Developer shall have complied with all terms and
conditions of the Project Approvals applicable to the Project, to the extent such term or
condition is applicable as of the date of submission of the Operating Covenant Grant
Draw Request.
(d) Construction of Prosect. Developer shall have Finally Completed the
Project.
3. Approval of Draw Request. City shall notify Developer (and Escrow
Agent) of approval or disapproval of the Operating Covenant Grant Draw Request
within fifteen (15) working days after receipt of the Operating Covenant Grant Draw
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Request and supporting temporary Certificate of Occupancy issued by City, using the
Operating Covenant Grant Disbursement Approval Notice attached as Exhibit B. The
Operating Covenant Grant shall be disbursed in one disbursement made by Escrow
Agent to Developer promptly following the receipt of the approved Operating Covenant
Grant Disbursement Approval Notice (and in no event later than two (2) business
days).
4. Disbursement of Operating Covenant Grant. Escrow Agent will
disburse the proceeds of the Operating Covenant Grant, in accordance with this
Agreement and to an account (or in a manner) specified by Developer. Escrow Agent
shall be entitled to rely on City approved Operating Covenant Grant Disbursement
Approval Notice in connection with the disbursement of funds to Developer. For the
limited purpose of the implementation of this Agreement by the Escrow Agent, the
provisions of this Agreement shall supersede any conflicting provisions of the PSA;
provided, however, nothing in this Agreement is intended to modify the rights and
obligations of the parties to the PSA.
5. Termination of Agreement. Upon complete disbursement of the
Operating Covenant Grant in accordance with the terms of this Agreement or, upon a
notice to terminate this Agreement provided to Escrow Agent in a signed writing by the
parties hereto, this Agreement will terminate and Escrow Agent shall undertake all
appropriate action (including any action reasonably requested by the parties hereto) to
close the Escrow Account. Any approved fees charged by Escrow Agent in connection
with the establishment of the Escrow Account and undertaking the activities stated
within this Agreement may be paid through the Operating Covenant Grant and the
earned interest thereon and, in the event such amount is insufficient to cover such
fees, shall thereafter be the responsibility of Developer. Any portion of the Operating
Covenant Grant and interest earned thereon remaining after termination of this
Agreement, if any, shall be paid to and returned to City.
6. Notices. All notices, demands, approvals and other communications
which are required to or may be given pursuant to this Agreement shall be in writing
and shall be delivered by personal delivery, overnight courier or registered or certified
U.S. mail, with return receipt requested, to the appropriate party at its address as
follows:
OAK #4852-2324-3305 v7
To City: City of Santa Clarita
Office of the City Manager
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Kenneth W. Striplin, City Manager
E-mail: kstriplin@santa-clarita.com
EXHIBIT J-3
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With a copy to: City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Thomas Cole, Director of
Community Development
E-mail: tcole@santa-clarita.com
and: City of Santa Clarita
Office of the City Attorney
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: Joseph Montes, City Attorney
E-mail: jmontes@bwslaw.com
To Developer: Laemmle Newhall, LLC
11523 Santa Monica Blvd.
Los Angeles, CA 90025
Attention: Greg Laemmle
E-mail: gregl@laemmle.com
With copies to: Serrano Development Group
500 North Brand Boulevard, Suite 2120
Glendale, CA 91203
Attention: Jason Tolleson, Principal
E-mail: jtolleson@serranodevelopment.com
And
Elkins, Kalt, Weintraub, Reuben, Gartside
LLP
2049 Century Park East, Suite 2700
Los Angeles, CA 90067
Attention: Keith Elkins
Phone No.: (310) 746-4401
E-mail: kelkins@elkinskalt.com
OAK #4852-2324-3305 v7 EXHIBIT J-4
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If to Escrow Agent:
[Name]
First American Title Company
655 North Central Avenue, 8t Floor
Glendale, CA 91203
Phone: (XXX) XXX-XXXX
E-mail: @
Any party may change its address for notice from time to time by written notice
to all other parties. If any communication is given by mail it will be deemed to be
effective for all purposes upon the earlier of (a) three (3) calendar days after deposit in
the U.S. Mail postage prepaid; or (b) actual receipt, as indicated by the return receipt;
or (c) if given by personal delivery or by overnight air courier, when delivered; or (d) if
given by email, when read by the recipient if an e-mail read receipt confirmation is
received by the sender.
7. Acceptance of Duties. Escrow Agent executes this Agreement in order
to agree to perform the duties imposed upon it by this Agreement.
8. Integration and Amendment. This Agreement supersedes all prior
discussions, negotiations, representations and agreements concerning the subject
matter hereof and may be amended only by a writing signed by City and Developer.
9. Counterparts. This Agreement may be signed in counterparts, each of
which shall be deemed an original, and all of which, taken together, shall constitute one
and the same instrument.
OAK #4852-2324-3305 v7
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City:
City Of Santa Clarita,
a municipal corporation
0
APPROVED AS TO FORM:
Kenneth W. Striplin, City Manager Joseph Montes, City Attorney
(Signature page for Funding Agreement)
S-1
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Developer
LAEMMLE NEWHALL, LLC,
a California limited liability company
M
Its:
OAK #4852-2324-3305 v7
APPROVED AS TO FORM:
Elkins, Kalt, Weintraub, Reuben, Gartside
(Signature page for Funding Agreement)
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Escrow Agent:
FIRST AMERICAN TITLE COMPANY
By: _
Name:
Its:
(Signature page for Funding Agreement)
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EXHIBIT A
OPERATING COVENANT GRANT DRAW REQUEST
LAEMMLE NEWHALL, LLC., a California limited liability company ("Developer") hereby
submits the attached temporary certificate of occupancy to the City of Santa Clarita, a
California municipal corporation ("City"), for the purpose of substantiating Final g
Completion of the Project as defined in Section 1.1 of the Purchase Sale and Grant o
Agreement, dated as of 2016 ("PSA"), and entitlement to the release and m
disbursement of the Operating Covenant Grant pursuant to Section 3.6 of the PSA.
CL
In connection with this submission, the Developer makes the following representations as N
of the date of this submission (Capitalized terms used but not otherwise defined herein 'w
shall have the meanings ascribed to them in the PSA.):
1) No Default. Developer is not in default under the PSA and no events have N
occurred which with the passage of time or giving of notice or both, would constitute a
default thereunder.
2) Project Approvals. Developer has complied with all terms and conditions of
the Project Approvals applicable to the Project, to the extent such term or condition is
applicable as of the date of submission of this Operating Covenant Grant Draw Request.
3) Construction of Project. Developer has Finally Completed the Project; and
4) Representations and Warranties. All representations and warranties of
Developer contained in the PSA are true and correct in all material respects.
LAEMMLE NEWHALL, LLC,
a California limited liability company
By:
Its:
Dated:
OAK #4852-2324-3305 v7
EXHIBIT A to EXHIBIT
Packet Pg. 291
EXHIBIT B
OPERATING COVENANT GRANT DISBURSEMENT APPROVAL NOTICE
TO: Laemmle Newhall, LLC
11523 Santa Monica Blvd.
Los Angeles, CA 90025
Attention: Greg Laemmle
E-mail: gregl@laemmle.com
CC: First American Title Company
h
655 North Central Avenue, 8t Floor
Glendale, CA 91203
Attn: [Name]
E-mail: @
FROM: City of Santa Clarita
RE: Operating Covenant Grant Escrow Agreement
Escrow No.:
Operating Covenant Grant Draw Request
This shall serve as the undersigned's notice of:
APPROVAL of Operating Covenant Grant Draw Request.
DISAPPROVAL of Operating Covenant Grant Draw Request for the following
reasons:
CITY OF SANTA CLARITA
By:
Name:
Title:
Dated:
OAK #4852-2324-3305 v7
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kosmon
companies
Memorandum
To: Jason Crawford, Manager of Economic Development and Marketing
Denise Covert, Economic Development Associate
City of Santa Clarita
From: Ken K. Hira, Executive Vice President, Kosmont Companies
Joseph Dieguez, Senior Vice President, Kosmont Companies
Nick Leathers, Project Analyst, Kosmont Companies °
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Date: January 29, 2016
CIL
Subject: Santa Clarita Old Town Newhall Mixed -Use and Theater Project Evaluation w
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I. Background & Project Description ao
Kosmont & Associates, Inc. doing business as Kosmont Companies ("Kosmont") has previously
assisted the City of Santa Clarita ("City") with economic development advisory services focused
on the Old Town Newhall district of the City. Kosmont prepared market and economic analyses,
identified potential redevelopment strategies and assisted the Successor Agency with Request
for Qualifications ("RFQ") drafting and distribution, and developer selection for a targeted
catalyst opportunity site within Old Town Newhall.
Following the dissolution of redevelopment agencies in California (including the former
Redevelopment Agency of the City Santa Clarita), Kosmont was re-engaged in 2015 to assist
the Successor Agency with the evaluation of two development proposals by the selected
development team, Serrano Development Group, Inc. and Pacific Coast Housing Development,
LLC (collectively, the "Developer") in concert with Laemmle Theaters, LLC ("Laemmle"). The
proposed projects are located on two adjacent parcels on approximately 1.1 acres of land
bounded by Main Street, Lyons Avenue, Railroad Avenue, and Ninth Street ("Site") in the City.
The projects are herein described as the Mixed -Use Project and the Laemmle Theater Project
(collectively, the Projects"), as delineated in Table 1.1.
Table 1.1 Proiect Description
Mixed -Use Project
Laemmle Theater Project
• —46 apartment dwelling units (51,200 SF)
• —17,688 SF theater
• —20,613 SF of retail space
• 7 screens, —550 seats
• On 34,325 SF of land (0.8 acres)
• —2,293 SF of retail space
• On 12,680 SF of land (0.3 acres)
1601 N. Sepulveda Blvd. #382 Manhattan Beach CA 90266 ph 424.456.3088 w .kosnnont.conn
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City of Santa Clarita
Old Town Newhall Mixed -Use Project Evaluation
January 29, 2016
Page 2 of 4
The Projects are immediately adjacent to an approximately 26,488 SF (0.6 acre) parcel
anticipated to be transferred by the Successor Agency to the City for future development as a
public parking structure to serve the Old Town Newhall community.
III. Executive Summary
Kosmont's evaluation included the review of multiple iterations of the Developer's pro forma for
both the Mixed -Use Project and the Laemmle Theater Project and corresponding financial
feasibility analysis. In Kosmont's opinion, the Developer's assumptions for construction costs,
operating revenues (e.g. lease rates), operating expenditures, and risk-adjusted return appear
to be in a reasonable range in consideration of current local market and economic conditions, as
well as Kosmont's recent and ongoing consulting assignments involving similar proposed
mixed-use development projects in other communities.
Kosmont additionally evaluated the public subsidy proposed for the Laemmle Theater Project in
comparison to multiple previous public-private transactions involving Laemmle Theaters in other
Southern California cities. On an -inflation adjusted basis, the total subsidy as currently proposed
for the Laemmle Theater Project is generally in line with public subsidies previously granted for
Laemmle Theater projects in Southern California. Additional analysis details are provided in the
following section of this memorandum, as well as in the attached Comparable Laemmle Theater
Deal Analysis exhibit.
III. Project Evaluation
A. Mixed -Use Project
Kosmont reviewed multiple iterations of the Developer's pro forma for the Mixed -Use Project
and provided feedback directly to the Developer for refinement. Kosmont evaluated acquisition
and construction costs and found them to be reasonable, including:
• Land acquisition costs at approximately $23.00 per -square -foot ("PSF") of land
(approximately $36.00 PSF before adjusting for environmental considerations)
• Retail direct/hard, indirect/soft, and financing costs ("all -in") at approximately $259 PSF
• Residential all -in costs at approximately $311 PSF (approximately $346,000 per unit)
• City fees in accordance with presiding adopted City fee schedules.
Operating revenues were evaluated to be reasonable in light of current lease rates in the Santa
Clarita submarket, at approximately $2.00 PSF for retail and a range of approximately $2.00 to
$2.25 PSF for apartments (approximately $1,850 to $2,750 per unit). Vacancy and operating
expenditure assumptions were also deemed to be reasonable.
The exit capitalization rates utilized by the Developer at 5.0% for residential and 7.0% for retail
accurately reflect recent sales activity and corresponding real estate investor appetite in the Los
KOSMONT COMPANIES
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City of Santa Clarita
Old Town Newhall Mixed -Use Project Evaluation
January 29, 2016
Page 3 of 4
Angeles market, and the unlevered return on cost (approximately 6.4%) and cash -on -cash
return (approximately 8.5%) appear to be reasonable in Kosmont's opinion.
Kosmont's evaluation reflects consideration of current local market and economic conditions as
well as Kosmont's recent and ongoing consulting assignments involving similar proposed retail /
residential mixed-use development projects in other communities, such as Azusa, Duarte, and
Buellton. California.
B. Laemmle Theater Project
Kosmont evaluated the Developer's pro forma for the Laemmle Theater Project with particular
consideration of the public subsidy currently proposed for the Project. As detailed in the
attached Comparable Laemmle Theater Deal Analysis exhibit, Kosmont compared specific deal
and subsidy terms between Old Town Newhall (as currently proposed) and three recent
Laemmle Theater Projects in Claremont (2007), North Hollywood (2011), and Glendale (2015)
based on published City Council and former Redevelopment Agency documentation (e.g.
agreements, agenda, meeting minutes) and conversations with the Developer.
Kosmont preliminarily reviewed other previous Laemmle Theater deals, including projects in Los
Angeles (1924), Santa Monica (1971), and Pasadena (1991); however it was determined that a
detailed evaluation of the three most recent Laemmle Theater transactions as referenced above
would provide the most relevant baseline for financial comparison. Kosmont adjusted major deal
term dollar amounts for inflation, in order to provide the most accurate, "apples -to -apples"
comparison between the three most recent Laemmle Theater projects. For example, the
$1,500,000 total subsidy negotiated in Claremont for Laemmle's construction in 2007 is
equivalent to approximately $2,076,351 in 2018 dollars, when the Old Town Newhall theater is
proposed to open for operation.
Gross construction and development costs at approximately $405 PSF and total costs net of
public subsidy at approximately $234 PSF for the Old Town Newhall Laemmle Theater are in
the same range of costs as the three most recent previous Laemmle Theater projects. Total
subsidy amounts and total subsidy as a percentage of gross construction costs were also
evaluated to be within the minimum and maximum of the range for these previous transactions,
as summarized in Table 1.2.
Table 1.2 Total Subsidv Comparison
Comparable Transaction
Total Subsidy Amount
(Inflation -Adjusted Dollars)
Total Subsidy as Percent of
Gross Construction Costs
Claremont (2007)
$2,076,351
25%
North Hollywood (2011)
$4,058,584
33%
Glendale (2015)
$5,572,908
71%
Santa Clarita (2018)
$3,420,525
42%
KOSMONT COMPANIES
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City of Santa Clarita
Old Town Newhall Mixed -Use Project Evaluation
January 29, 2016
Page 4 of 4
The previous comparable deals evaluated entailed a similar subsidy structure, including some
or all of the following components:
• Operating covenant
• Land payment discount
• Fee and/or site preparation cost reimbursement.
Comparable projects evaluated included an operating covenant and corresponding payment.
Most recently in Glendale (2015), an operating covenant payment of approximately $1,639,091
(in inflation-adjusted dollars) secured the operation of the theater for a period of at least 15
years. In North Hollywood (2011), an operating covenant payment of $1,229,874 (in inflation- 4
adjusted dollars) secured the operation of the theater for a period of at least 10 years. In Santa o
Clarita, the currently proposed operating covenant payment of $1,980,000 stipulates that 00
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Laemmle must operate for at least 15 years, with the option to reduce operation from a w
minimum of six screens to no less than four screens after year 7. CL
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Comparable deals evaluated also included a land payment discount, and the most recent a
comparable deal in Glendale also included a fee / site preparation cost reimbursement similar to
the current proposal in Santa Clarita.
IV. Conclusions
The Developer's assumptions for construction costs, operating revenues (e.g. lease rates),
operating expenditures, and risk-adjusted return for the Mixed -Use Project appear to be in a
reasonable range in consideration of current local market and economic conditions, as well as
Kosmont's recent and ongoing consulting assignments involving similar proposed mixed-use
development projects in other communities. In addition, on an -inflation adjusted basis, the total
subsidy as currently proposed for the Laemmle Theater Project is generally in line with public
subsidies previously granted for the Laemmle Theater projects evaluated.
It is additionally worth noting that public-private transactions reflect unique circumstances and
variables. More general factors include the state of the economy, labor and material costs, and
consumer spending and housing preferences. Other factors are more community -specific, such
as the significance of a potentially catalytic, entertainment -oriented project in the historically
under -vitalized neighborhood of the City in Old Town Newhall. A theater such as Laemmle has
the potential to serve as an "anchor" along Main Street, which, in addition to generating direct
fiscal impacts (e.g. sales tax, property tax) and economic benefits (e.g. job creation), can
produce indirect impacts for nearby businesses in Old Town Newhall.
Separate evaluations prepared by Kosmont and Applied Economics analyzed the fiscal revenue
impacts of the proposed Projects. A summary of results is appended to this Memorandum. It is
estimated that the Projects collectively will generate sufficient direct and indirect property and
sales tax revenue to "pay for" the proposed Laemmle Theater Project subsidy by 2032, or year
15 of operation, which appears reasonable, considering the 15 -year term of the proposed
operating covenant for the Theater Project.
KOSMONT COMPANIES
1601 N. Sepulveda Blvd. #382, Manhattan Beach, CA 90266 ph 424.456.3088 w .kosmont.com
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City of Santa Clarita - Old Town Newhall Comparable Laemmle Theater Deal Analysis
Theater Name
Year
guilt
Theater Size
(SF)
Screens
Seats
Theater Cost
(Gross)
Gross Cost
PSF
Theater Cost
(Net of Subsidy)
Net Cost
PSF
Net Cost Per
Screen
Claremont
2007
18,500
5
840
$6,000,000
$324
$4500,000
$243
$900,000
North Hollywood
2011
25,000
7
1,100
$10,000,000
$400
$6]00,000
$268
$95],143
Glendale
2015
9,400
5
325
$]200,000
$766
$2,100,000
$223
$420,000
Santa Clanta
2018
19,981
7
550
$8,08],15]28
$405
$4,666,632
$234
$666,662
Adiusted for inflation to 2018: 3.00%
Theater Name
Year
guilt
Theater Size
(SF)
Screens
Seats
Theater Cost
(Gross)
Gross Cost
PSF
Theater Cost
(Net of Subsidy)
Net Cost
PSF
Net Cost Per
Screen
Claremont
2007
18,500
5
840
$8305,403
$449
$6229,052
$337
$1,245,810
North Hollywood
2011
25,000
7
1,100
$12298,]39
$492
$8 240 155
$330
$11]],165
Glendale
2015
9,400
5
325
$],86],634
$837
$2294,]2]
$244
$458945
Santa Clanta
2018
19,981
7
550
$8,08]15]
$405
$4,666,632
$234
$666,662
AVERAGE
18,220
6
704
$9,139,733
$546
$5,357,642
$286
$887,146
TOTAL
72,881
24
2,815
$36,558,934
$502
$21,430,566
$294
$892,940
Note: Theater size includes ancillary retail
3.g
Subsidy Terms
Total
Total
Operating
Land
Total Subsi
Fee 8, Site Prep
Total Subsidy
Subsidy Per
Subsidy Per
Conversant
Payment
Reimbursement
as%ofGrc
Screen
Seat
Payment
Discount
Cost
$1 500,000
$300,000
$1 786
$600,000
$900,000
$0
$3300,000
$4]1,429
$3,000
$1,000,000
$2300,000
$0
$5,100,000
$1,020,000
$15,692
$1500,000
$2500,000
$1,100,000
$3,420,525
$488,646
$6219
$1980,000
$440,525
$1,000,000
C
3,420,525
F$
$488,646
$6219
$1980,000
$440,525
$1,000,000
� �
Re
Subsidy Terms
Total
Total
Operating
Land
Total Subsi
Fee 8, Site Prep
Total Subsidy
Subsidy Per
Subsidy Per
Conversant
Payment
Reimbursement
as%ofGrc
Screen
Seat
Payment
Discount
Cost
$2,0]6,351
$415,2]0
$2,472
$830540
$1245,810
$0
$4,058,584
$5]9,]98
$3,690
$1229,8]4
$2,828,]10
$0
$55]2,908
$1,114,582
$1],14]
$1,639,091
$2]31,818
$1202,000
$3,420,525
$488,646
$6219
$1980,000
$440,525
$1,000,000
$3,782,092 1 $649,574 1 $7,382 1 $1,419,876 1 $1,811,716
$15,128,367 1 $2,598,296 1 $29,528 1 $5,679,505 1 $7,246,863
$550,500
$2,202,000
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City of Santa Clarita - Old Town Newhall Summary of Gross Fiscal Revenue Impacts 3 g
1/29/2016
Indirect Revenues
(Estimated bV Applied
Economicsl
PropertyTax
Direct Revenues
Prop +Sales Tax
Year
$64,069
PropertyTax
$15,164
Sales Tax
$81,155
Prop Sales Tax
1
2018
$33,420
$70,010
$80,171
$16,093
$113,591
2
2019
$34,088
$90,688
$82,576
$76,502
$116,664
3
2020
$34,770
$17,419
$85,053
$98,580
$119,824
4
2021
$35,466
$86,103
$87,605
$18,485
$123,071
5
2022
$36,175
$110,202
$90,233
$94,087
$126,408
6
2023
$36,898
$20,409
$92,940
$123,221
$129,838
7
2024
$37,636
$109,073
$95,728
$21,658
$133,365
8
2025
$38,389
$137,807
$98,600
$119,187
$136,989
9
2026
$39,157
$23,444
$101,558
$149,889
$140,715
10
2027
$39,940
$134,146
$104,605
$24,879
$144,545
11
2028
$40,739
$167,692
$107,743
$146,585
$148,482
12
2029
$41,554
$257,101
$110,975
$1,448,715
$152,529
13
2030
$42,385
$3,048,109
$114,305
$156,689
14
2031
$43,232
$117,734
$160,966
- 15 -_-
--- 16-- -
2032
---203i
-_-_-_-_ $44,097
- --$44,979
--
-_-_-_- $121.266
-- $124,904
_-_-_-_ $165363
-- --$169,883
17
2034
$45,878
$128,651
$174,529
18
2035
$46,796
$132,510
$179,306
19
2036
$47,732
$136,486
$184,218
20
2037
$48,687
$140,580
$189,267
21
2038
$49,660
$144,798
$194,458
22
2039
$50,653
$149,142
$199,795
23
2040
$51,667
$153,616
$205,282
24
2041
$52,700
$158,224
$210,924
25
2042
$53,754
$162,971
$216,725
26
2043
$54,829
$167,860
$222,689
27
2044
$55,926
$172,896
$228,822
28
2045
$57,044
$178,083
$235,127
29
2046
$58,185
$183,425
$241,610
30
2047
$59,349
$188,9281
$248,277
Vear 1-15
Total
$577,945
$1,491,094
$2,069,039
Year 1-20
Total
$812,0171
$2,154,2251
$2,966,242
Vear 1-30
Total
$1,355,7831
$3,814,1691
$5,169,952
1/29/2016
Indirect Revenues
(Estimated bV Applied
Economicsl
PropertyTax
Sales Tax
Prop +Sales Tax
$14,867
$64,069
$78,936
$15,164
$65,991
$81,155
$15,468
$67,971
$83,438
$15,777
$70,010
$85,787
$16,093
$72,110
$88,203
$16,414
$74,274
$90,688
$16,743
$76,502
$93,244
$17,078
$78,797
$95,874
$17,419
$81,161
$98,580
$17,767
$83,596
$101,363
$18,123
$86,103
$104,226
$18,485
$88,686
$107,172
$18,855
$91,347
$110,202
$19,232
$94,087
$113,320
-_ -$19,617
-_-_-------
-$20,009 --
_-_-_-_--- $96,910
$99,817 ------------
$116_527
T119,826
$20,409
$102,812
$123,221
$20,817
$105,896
$126,714
$21,234
$109,073
$130,307
$21,658
$112,345
$134,004
$22,092
$115,716
$137,807
$22,533
$119,187
$141,721
$22,984
$122,763
$145,747
$23,444
$126,446
$149,889
$23,913
$130,239
$154,152
$24,391
$134,146
$158,537
$24,879
$138,171
$163,049
$25,376
$142,316
$167,692
$25,884
$146,585
$172,469
$26,401
$150,983
$177,384
$257,101
$1,191,614
$1,448,715
$361,229
$1,721,558
$2,082,787
$603,126
$3,048,109
$3,651,235
Total
Direct+ Indirect Revenues
PropertyTax
Sales Tax Prop
Sales Tax
$48,287
$144,240
$192,5
$49,253
$148,567
$197,8
$50,238
$153,024
$203,2
$51,242
$157,615
$208,8
$52,267
$162,343
$214,6
$53,313
$167,214
$220,5
$54,379
$172,230
$226,6
$55,467
$177,397
$232,8
$56,576
$182,719
$239,2
$57,7071
$188,200
$245,9
$58,862
$193,846
$2527 {
f
$60,039
$199,662
$259,7 �
$61,240
$205,652
$266,8
$62,464
$211,821
$274,2 S
$63 714
_-_-_-_- --$64,988
_-_-_-_ $218,176 -_-_-_-
-- --$224,721 --
$281_8
I
--$289,7 S
$66,288
$231,463
$297,7
$67,613
$238,407
$306,0
$68,966
$245,559
$314,5 {
$70,345
$252,926
$323,2
$71,752
$260,513
$332,2 0
$73,187
$268,329
$341,5 '
$74,651
$276,379
$351,0 C
$76,144
$284,670
$360,8 g
$77,667
$293,210
$370,8
$79,220
$302,007
$387 {
$80,804
$311,067
$391,8 •{
$82,420
$320,399
$402,8 t
$84,069
$330,011
$414,0 {
S
$85,750
$339,911
$425,6 C
$835,046
$2,682,707
$3,517,7
$1,173,246
$3,875,783
$5,049,0 •L
$1,958,9091
$6,862,278
$8,821,1
That analyses, prajeclions, assumptions, rales of retum, and any example* presented heroin are for
ilusualrre piXposes and are not a guarantee of actarel andror fours resuns. Project pro forma and
tax analyses are projecpons only. Actual results may diger tram those expressed n His analysis.
Packet Pg. 299
kovN
s'g
Kos mont &Associates, Inc. dba Kosmont Companies nul�mmi.:
Type of Legal Entity: Corporation Established: 198801m
on
Firm Description: kosm
Kosmont Companies, a combed Minority Business Enterprise (MBE) and coddled Small
Business Enterprise (SBE) is a real estate, financial ativisory, and economic development
service
s fine offering a full gone planning
real estate and e ativisory, prefect finance,
transaction structuring, ns Founded
planning antl Kosmont
Implementation services for bothsized
public and private sectors. mentletl In real
e Kosmont Companies Is o ernme t recognized
sector In seconomic development and real estd@ projects Involving government and private
sector transactions and partnerships.
With decades of advisory services Kosmont Is among the most capable of companies In
California. We have assisted hundreds of publican noes In their quest for services related to
economic tlevelopment, planning, funding and financing, public/private partnerships and much
more Kosmont will Integrate our established ability, strengths, seasoned experience, and
hands on knowledge to meet the City's consulting service desires.
Economic Development ConsultingServices
Kosmont Retail NOW!-: Kosmont offers this comprehensive and proactive retail strategy
which identifies existing conditions, sets path, targets tenants and produces results for cites
while bringing viable retail to a community.
Economic Development Strategies: With decades of advisory services to the public sector,
Kosmont Is among the most capable of companies In California when It comes to designing and
Implementing a c development strategy. We have assisted hundreds of public
agencies In their quest toretainjobs, allactand retain business, structure zoning, tlaff General
Plan elements, tlaff Specific Plans and structure tax and Incentive plans that target meaningful
private investment
Downtown Revitalization: Commuting (staking itstoll and home affordability continues to be a
concern for cities and counties. Many people are moving back to multi tamily housing In city
centers and many businesses are moving closer to workers. Suburban and urban communities
are rediscovering the viability of their aging downtowns. Newer cites want to create a
sustainable center for their communities. Kosmont has diverse expertise with revitalization
programs utilized to create change. We work closely with public agencies In positioning and
developing their opportunity sites through creative negotiation and financing that properly
encourage private developmentlease activity and business Interests.
Asset Management Plans: Kosmont is an industry leader In public asset evaluation property
transactions (sale, acquisition, ground lease, and leasefleaseback) and long term asset
strategies and plans. For public agencies including school districts, cites, counties water
districts, the State, non profits and many others. Kosmont has been retained to evaluate and
Implement property transactions ranging from planning, finance, infrastructure and site
development through purchase/sale and lease activities.
Developer Selection RFQ/RFP & DDA/ENA: Public agencies need an efficient and targeted
RFP selection process, particolary when so many taxpayer dollars are on the line and the
quality of life of constituents will be affected by these decisions for many years. Kosmont
SOSMONT
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Companies has a stellar record of marketing the it eve lopment that municipal and regional public
agencies want Having also acted as a tleveloper, we not only understand what attach good
developers to publicly funded project, we also have an eye for which developer would make a
good fit Once a developer Is selected Kosmont relies on its years of experience on both sides
of the deal, negotiating and drafting Memorandum of Understanding/Preliminary Term Sheet,
Exclusive Negotiation Agreement, Development Agreement, and to structure viable projects
in a manner beneficial for the partes Involved.
raxlFee Analysis: Despite the flattening effects of globalization, the hard costs of taxes and
fees remain a major factor in a company's decision to remain in a particular jurisdiction or to
relocate to a less costly one, and therefore are nerstone of economic development policy
Kosmont has been analyzing and evaluating the effects of state and the K tax ones and fees on
e
Cost
of Dan and regional economies for almost two tleatles through the Kosmont Rose Institute
Cas; ie Dsse s the essimp Survct of their
as well a myriad of nthadvisory noj icfa We help public
agencies assess the Impact of their [ax and fee structure on the economic factors that matter
most.
Real Estate Economics and Financial Advisors Services
Project Economics, Highest & Best Use (HBU) & Market Studies: With decades of
experience In market analysis and real estate economics Kosmont Companies always
thoroughly analyzes each proposed project to ensure the short and long tens Impacts of the
development an be self sustaining We determine If the market contains sufficient or potential
demand to make all element of a development viable, including identification and analysis of
highest and best use. Depending on the outcome of our analysis, we present alternative product
mixes and design element to enhance the marketability and longterm success of a project
Fiscal & Economic Impacts: A public agency's decision to approve a new project o
tlevelopment, more often than not, depends on the likely Impact of a project on the local
government s fiscal health as well as Impacts on the community including the types and number
of jobs to be created Kosmont provides Fiscal and Economic Impact report to describe these
and other economic Impacts and benefit likely to be generated by a project on a local
community The results are typically of merit and/or value to both the governing public agency
and the owner/tleveloper/operator.
Public & Private Financing Structures: PaMership9tansactons between public agencies
and private property owners often hinge on the outcome of complex and mutually beneficial
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value atthe end of the transaction while satisfying both sides of the deal.
Plannina and Development Services
Project Evaluation: Kosmont Companies has extensive experience In assessing the potential
for development and/or leasing opportunities of all product types, whether they are ground up or
reuse antl, existing premises, suburban or Infill. Our extensive experience with public and
private sector deal structures and financing mechanisms enable us to spot opportunities and
deliver solutions that are not always identified by the parties to the transaction.
Project Financials & Pro -Forma Assessment: Our financial real estate advisors have the
acuity to determine If an opportunity will pencil out. Wee e the optimum range of
development via proforma analysis that will form the Intersection of what a developer requires,
what Investors require, what the community desires, and what Is likely to be accepted by the
public agency.
KOSMONT
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Property Acquisition/Leasing: Knowing when and how to fie up or lease a property Is one of
the most critical decisions an owner an make. As a team that understands that profivretum Is
often In the buy or base leaseupperiod we know when opportunities are timely and an help
you determine If and when a particular property Is likely to perform. We also know when to
advise you to avoid a purchase that Is not likely to be ripe for development or that long-term
lease conditions are not optimal, and whether the circumstances may be outside a reasonable
level of risk based on anticipated reward.
Land Use/Entitlements: To create a successful project today, developers and public agencies
re frequently on different sides of the entitlements business. More than two decades of public
and private sector consulting has made Kosmont Companies keenly aware of what public
agencies and communities want Today, entitlements are about striking a productive
compromise between the public and private sector. Communities want development and they
sometimes offer Incentives to get It We an help bring togetherthe public and private sectors
to facilitate entitlements that satisfy private development and investment expectations while
gluing communitiesthe results they desire.
Due Diligence Report: Everysite selection process begins with a basic due diligence review of
the property. Kosmont Companies offers a comprehensive summary that will specifically along
clien[to "fatal FlawsIn a project that could make or break the decision to buy and/or develop.
Zoning&Implementation Strategies Aer Economic Development: Redevelopment is gone.
Unemployment levels are struggling to recover. Cities are leftwith fewertoolsto Incentivizejob
and taxgeneratingprojects. For some local governments, the answer may Ile In adjustments to
their land use and zoning policies. Kosmont an set up various systems that combine the power
of a Specific Plan with tools such as a Development Operating Reserve that allows the city to
caDte development capacity at its discretion to create the kinds of uses that the city and its
itizens need most
Sustainable Economic Development
Kosmont Companies is member of U.S. Green Building Council (USGBC), with personnel who
have acquired the credential of LEEG Green Associates administered by the USGBC. We are a
Bader In green initiatives and sustainable economic development practices. The sustainability
landscape Is constantly evolving and agencies must strive to be ahead of the curve. For over 27
years, Kosmont has advised numerous public agencies of all sizes and complexities across
California o variety of issues related to sustainable economic tlevelopment, job creation,
retlevelopment, and a host of Issues related to real estate finance and economics. Most recently
Kosmont authored a statewide proposal o "Green RCA's', which focuses o roles of
redevelopment and economic development In Implementing AB 32 and SB 375 programs and
initiatives.
Land Use and Community Planning Services
Kosmont Companies provides due diligence and project guidelines when determining the scope
and layout of a specific project, asset portfolio evaluation, and/or project development program.
Kosmont has extensive experience In tlevelopment, land use planning, CEOA analysis and
documentation processes, real estate economics market research and financial modeling Mich
is applied to assist private, public sector, education and non profit clients In determining
objectives, as well as the most appropriate approach and course of action to follow.
Successor Agency Consulting Services
Successor Agency and Oversight Board Dissolution Services: Kosmont Companies was
retained by the California Department of Finance (COF) to provide comprehensive staff support
KOSMONT
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to six of the seven agencies — known under ABxl 26 as Designated Local AuthoritiesFhFAsJ.
Based upon the firm's long and successtul track record In the red eve lop ment arena and its
current roster of over a dozen dissolution clients, Kosmont Is ideally suited to assist Successor
Agencies and Oversight Boards with a full range of dissolution duties from preparing
Recognized Obligation Payment Schedules (ROPS) to communicating with the POP and
working with bond trustees.
Long Range Property Management Plans: Kosmont Companies specializes In asset
management plans and has been preparing property based strategies for over 29 years for
redevelopment agencies, cities, counties and other public agencies. Kosmont Companies wth
Kosmont Realty Company, our full service brokerage and financing fine, have the necessary
skills to effectively prepare and Implement the required Property Management Plans (PMPs) for
former redevelopment agencies properties. As part of the PMP, Kosmont explores ways that
Cities and Successor Agencies may benefit from the AB 1434 dissolution process. Benefits
could include retention of property for governmental use retention of property for future
development, and refunding and refinancing bond obligations. For property that must be sold
Kosmont seeks buyers for assets that may best serve the Tong term Interests of the City.
Financial Ativisory & Redevelopment Dissolution Services: Kosmont Companies has
helped more than 100 cities and agencies with real estate financial advisory, valuation and
disposition assignments. The firth offers the following essential Financial Advisory Services to
Successor Agencies and Oversight Boards statewide
•Asset Strategies • NPV and Income Stream Analysis
• Highest & Best Use Evaluation • Financing Alternatives for Existing Transactions
• Baker Opinion of Value (via • Negotiations of Transaction Issues
Kosmont Realty Corp LAC) • Refunding of ROA Bonds pursuant to AB1484 (via LAC)
Statewide Education on Redevelopment Dissolution, PMPs and AB14U
Kosmont Companies created and taught the Property Management Plan workshop for CALED s
Annual PreConferenceIn 2913 which was allended by approximately 75 government
professionals. Additionally Kosmont led a webinar entitled From Dissolution to Development
-
How to Unlock the Benefits of Property Management Plans' for the California Redevelopment
Association (CRA) that was allended by neatly 200 participants, mainly Successor Agencies.
[ Kosmont Companies' services overview continued on next page ]
KOSMONT
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Kpsnnont ComparlEs SerAc2s OyerAew:
Economic Development
Strategies a
Implementation
Taxable /Tax Exempt
Bonds and COPS
Mat' Studies INBO&
Economic Nnalyzis, &
Debt Reslruduring/
Pry erty nagement
Financial Evaluation
ReMancing
1
Resonant Retail
Fiscal Impact &
Public(�genry
NOWT®
Financial Strategies/
Benefit Analgsis
Poor ROA Services
Entitlements/
Lantl Ose &
Public/ Private
Due Diligence
Znnin9 Strategies
Transactions fil
EnbancealFDs
Continuing Disclosure
Developer
Planning and
Selection lRFP/D)
Implementation
Services
'Conned MBE and SBE
NoementCompenleale the proud reclplent of the 'Ar eIIPrvato Letico Buelneee of the Year
fore the 2015 Los A ggeles Buelneee JoumaYs Letlno Buelneee of the Year Awards
KOSMONT COMPANIES
1601 N. Sepulveda Bud M182 Manhatlan Seats CA 90266 ph 424.4563088 v
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ON
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CIN of Redondo Beach
Peter Grant, Former Assistant City Manager
Now City Manager, City of Cypress
5275 orange Avenue
Cypress, CA 90830
Phone. ]14-229-6688
Cell. 714-335-1885
pgant@orypressca os
CIN of Placentia
Troy L. Butzlaff, former City Administrator
Now City Manager, Conof Azusa
213 E. Foothill Blvd
Azusa, CA 91702
Phone. 626 812-5238
Cell. 714-]45-5815
lbutzlaff@ciazusa mos
CIN of Montebello
William Molinari
City Councilmember
1800 West Beverly Blvd
Montebello, CA 90840
Cell .323-240-0481
*M afor Molina n does no have email You may contact
On e Monomer Lien Gum an by email at
igum an@mvom one bell ocorn if ecesen to ream mm eiedmni®iry.
City of South Gate
Steve LeFever
Community Development Director
8850 California Avenue
South Gate CA 90280
Cell. 323228 9217
slefever@sogate org
CIN of Stanton
Omar Dadabhoy
Community Development Director
7800 Katella Avenue
Stanton CA 90880
Phone. ]14-3]9-9222 x213
odadabhoy@cistanton mos
Kilroy Realty Corporation
Robert Little, Vice President of
Development
12200 W. Olympic Blvd, Suite 200
Los Angeles, CA 90084
Phone. 858-523-2208
Cell 582-5333979
EmailrDIe@aIroyrealty corn
TESTIMONIAL'. "Kosmont delivers an array of technics/ and deal making skins
that public agencies cannot develop in-house. Their ability to understand
economic development projects from the city, developer and financier
perspectives hes deliveond tremendously successful results for Retlontlo Beech."
PeterGran( Assistant City Manager, City of Retlontlo Beech
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OVERSIGHT BOARD RESOLUTION NO. 16-06
A RESOLUTION OF THE OVERSIGHT BOARD TO THE
SUCCESSOR AGENCY OF THE SANTA CLARITA
REDEVELOPMENT AGENCY APPROVING THE TRANSFER OF
THAT PORTION OF THE REDEVELOPMENT BLOCK BOUND
BY LYONS AVENUE, RAILROAD AVENUE, 9TH STREET AND
MAIN STREET, KNOWN AS THE PARKING PROPERTY, TO
THE CITY OF SANTA CLARITA PURSUANT TO THE FIRST
AMENDMENT OF THE LONG RANGE PROPERTY
MANAGEMENT PLAN
WHEREAS, the Oversight Board to the Successor Agency of the Santa Clarita
Redevelopment Agency ("Oversight Board") was established to direct the Successor Agency to
the former Santa Clarita Redevelopment Agency ("Successor Agency") pursuant to Assembly
Bill x1 26, chaptered and effective on June 27, 2011, Assembly Bill 1484 chaptered and effective
on June 27, 2012, and Senate Bill 107 chaptered and effective on September 22, 2015 (together,
the "Dissolution Act");
WHEREAS, among the duties of successor agencies under the Dissolution Act is the
preparation of a long-range property management plan that addresses the disposition and use of
the real properties of the former redevelopment agency for consideration by a local oversight
board and California Department of Finance ("DOF") for purposes of administering the wind -
down of financial obligations of the former Redevelopment Agency;
WHEREAS, Health and Safety Code ("HSC") Sections 34191.4 and 34191.5 provide
that within six (6) months of the Successor Agency receiving a Finding of Completion from the
DOF pursuant to Section 34179.7, the Oversight Board is to review and approve the Successor
Agency's Long Range Property Management Plan ("LRPMP") that addresses the disposition and
use of the former redevelopment agency's real property, which LRPMP then is submitted to the
DOF for review and approval;
WHEREAS, the Successor Agency received its Finding of Completion from the DOF on
June 20, 2013;
WHEREAS, the Successor Agency prepared an LRPMP consistent with the provisions
of the Dissolution Act, HSC Section 34191.5, and the guidelines made available by DOF;
WHEREAS, the Oversight Board approved the LRPMP on December 17, 2013;
WHEREAS, the Department of Finance approved the LRPMP on June 27, 2014;
WHEREAS, the Dissolution Act was modified to provide the ability for cities to receive
parking related properties at no cost, subject to an amendment to the LRPMP;
WHEREAS, the Successor Agency prepared a First Amendment to the LRPMP specific
to a portion of the property bound by Lyons Avenue, Railroad Avenue, 9t' Street and Main
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Street, known as the Parking Parcel and depicted in Exhibit A attached hereto, to provide for the
transfer of the Parking Parcel to the City at no cost for governmental use as a parking facility
dedicated to public parking;
WHEREAS, the Oversight Board approved the First Amendment to the LRPMP on
December 9, 2015;
WHEREAS, the Department of Finance approved the First Amendment to the LRPMP
on January 28, 2016;
WHEREAS, the Successor Agency Board directed the Successor Agency to take actions
necessary to transfer the Parking Parcel to the City on February 9, 2016;
WHEREAS, public notice of this meeting of the Oversight Board was provided pursuant
to Health and Safety Code Section 34181(f);
NOW, THEREFORE, THE OVERSIGHT BOARD TO THE SUCCESSOR
AGENCY OF THE SANTA CLARITA REDEVELOPMENT AGENCY DOES HEREBY
RESOLVE AS FOLLOWS:
Section 1. The Recitals set forth above are true and correct and incorporated herein
by reference.
Section 2. The Oversight Board finds that the Successor Agency complied with the
Dissolution Act.
Section 3. The Oversight Board to the Successor Agency hereby approves the transfer of
the Parking Parcel, as depicted in Exhibit A attached hereto and incorporated herein, to the City
of Santa Clarita at no cost and does hereby authorize and direct the Executive Director of the
Successor Agency or his designee to take all actions and execute and enter into all documents
necessary to transfer the Parking Parcel to the City of Santa Clarita.
PASSED, APPROVED, AND ADOPTED this 22nd day of February 2016.
Kenneth W. Striplin
Oversight Board Chair
ATTEST:
Marilyn Sourgose
Oversight Board Meeting Clerk
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STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF SANTA CLARITA )
I, Marilyn Sourgose, Oversight Board Meeting Clerk, do hereby certify that the foregoing
Resolution was duly adopted by the Oversight Board of the Successor Agency to the Former
Redevelopment Agency of the City of Santa Clarita at a regular meeting thereof, held on the
22nd day of February 2016, by the following vote:
AYES:
NOES:
ABSENT:
Marilyn Sourgose
Oversight Board Meeting Clerk
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DECEMBER 16, 2015
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250r -l" /
LYONS AVENUE
` 1I6'•T 27-6'
Bus STOP
— 9TH STREET
AT GRADE PLAN
NEWHALL THEATER MIXED-USE
Old Town Newhall, CA
with T-0" turn pocket
Attachment: Parking Parcel Exhibit A (1528 : Redevelopment Block)
urban studio
WILLIAM HEZMALHALCH
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APPLIED
ECONOMICS
INDIRECT ECONOMIC IMPACTS OF THE
PROPOSED REDEVELOPMENT BLOCK PROJECTS M
FINAL DRAFT REPORTQ.
rc
PREPARED FOR:
CITY OF SANTA CLARITA, CALIFORNIA
23920 VALENCIA BOULEVARD
SANTA CURRA, CALIFORNIA 91355
NOVEMBER 9, 2015
Economic & Fiscal Impact Demograpluc Analysis Economic Development
Packe[Pg. 310
31
TABLE OF CONTENTS
EXECUTIVE SUMMARY........................................................................................... III
1.0 INTRODUCTION.............................................................................................. 1
2.0 INDIRECT ECONOMIC IMPACTS.................................................................... 3
3.0 BUSINESS SALES IMPACTS........................................................................... 6
4.0 PROPERTY VALUE IMPACTS......................................................................... 10
5.0 REVENUE IMPACTS................................................................................. 13
APPLIED ;;
ECONOMICS
Packe[ Pg. 311
3-;
EXECUTIVE SUMMARY
The purpose of this study is to evaluate the economic and revenue impacts of the three
proposed projects being proposed for the Redevelopment Block on surrounding
businesses and properties in the Old Town Newhall portion of Santa Clarita, California.
The proposed projects could be the next important piece of the City's redevelopment
efforts, begun some ten years ago, to transform and revive Old Town Newhall.
The Redevelopment Block Projects are proposed for a site on the southwest corner of
Lyons and Railroad Avenues. The project site is located near the north end of historic
Old Town Newhall. The first project is a six or seven -screen Laemmle Theatres
arthouse cinema. The second project is a mixed-use development with 46 apartments
above 19,300 square feet of ground -floor retail space. Included in the mixed-use portion
is a minimum of 79 residential parking spaces. Additional spaces for the residential uses
are being considered, but would be dedicated solely for the use of the residents. The
third and final component to the project is a parking structure for public parking
estimated to be at least 350 spaces.
The indirect economic impact of this project will be driven by new economic activity from
three primary sources including, ancillary expenditures made by theatre and new retail
patrons, additional people drawn to the area that utilize the new available parking, and
expenditures made by the residents and workers occupying the projects. In turn, this
new economic activity is expected to result in further real estate redevelopment and
increased property values. Together, the theatre patrons, the associated visitors, and
project residents and employees are expected to generate an increase of about $14.1
million in new taxable sales to the City of Santa Clarita annually.
New on-site non -theatre sales will account for $7.7 million impact in annual indirect
taxable sales, resulting in a net impact of about $6.4 million per year being spent at
existing businesses. Since approximately $600,000 of the $800,000 of new taxable
sales by residents is not expected to occur in the five study areas, the annual impact on
existing businesses in the Old Town Newhall study areas will equal about $5.8 million
per year. The $600,000 per year would still flow into Santa Clarita businesses, but in
categories such as automobiles, apparel, and household furnishings that are not
represented in the study areas. The $6.4 million in net new taxable sales results in
about $64,000 per year of additional revenue to the City of Santa Clarita in the first year
of operations.
The project will also have a positive impact on the value of other properties in the
immediate area and could help induce other property impacts through redevelopment.
While any increases in property values may not immediately translate into additional
property tax revenues, over time the value of a commercial property is directly related to
its ability to generate revenue. Applying value increases by study area and type of use
results in about a $6.6 million increase in property values as a result of the project.
Based on an assessment of the properties immediately surrounding the project(s), it is
estimated that redevelopment could add another $3.4 million in increased property
value. The total property value increase of about $10.0 million would result in about
$14,900 per year in net new property tax to the City of Santa Clarita.
APPLIED ;;;
ECONOMICS
P.acket:Pg. 312
3-;
1.0 INTRODUCTION
The purpose of this study is to evaluate the economic and revenue impacts of the three
unique projects that are currently proposed for the Redevelopment Block on
surrounding businesses and properties in the Old Town Newhall portion of Santa
Clarita, California. The three proposed projects could be the next important piece of the
City's redevelopment efforts, begun some ten years ago, to transform and revive Old
Town Newhall. The redevelopment efforts are aimed at embracing the area's origins as
a railroad and highway transportation hub, while creating a new sense of place and
economic opportunity for existing and future businesses.
The Redevelopment Block is a block of property on the southwest corner of Lyons and
Railroad Avenues. The project site is located near the north end of historic Old Town
Newhall, generally bordered by Lyons Avenue, Railroad Avenue, 9t° Street and Main
Street. The site has excellent accessibility to the target market area since it is located
about 2 miles east of Interstate 5 and 2 miles northwest of the Antelope Valley Freeway.
The site is across the street from the recently completed Old Town Newhall Library and
is in close proximity to the Newhall Metrolink Station. The area immediately surrounding
the site is home to a base of unique shops and restaurants which are unified by a
pedestrian -friendly Main Street.
The first project is proposed to be a six or seven -screen Laemmle Theatres' arthouse
cinema. The second project is a mixed-use project consisting of 46 apartments above
19,300 square feet of ground -floor retail space. As part of the mixed-use project, a
minimum of 79 residential parking spaces will be provided. Additional spaces may be
provided but would be restricted to the residential units. Finally, the third project is a
parking structure consisting of at least 350 public parking spaces. This parking will
provide much needed additional accessibility to existing businesses by both current
customers and the new customers that find the area as a result of visiting the project
site. The Redevelopment Block Projects are also likely to be a stimulus for further
redevelopment in the immediate area, resulting in increases in employment, retail sales
and property values.
In order to properly assess the impact of the project on neighboring businesses and
properties, the area surrounding the site was divided into five study areas. As shown in
Figure 1, the study areas are based on land use, proximity to the project site and type
of business. Study areas 1, 2 and 5 are located along Main Street in the primary
revitalization area. Study areas 3 and 4 include businesses west of Walnut Street along
Lyons Avenue, which serves as a major thoroughfare with access to Interstate 5.
Location and the type of development and businesses in each study area were taken
into account when determining the potential off-site economic and revenue impacts.
APPLIED 1
ECONOMICS
P�acketpg. 31
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FIGURE 1: PROJECT LOCATION AND STUDY AREAS
As shown in Figure 2, the study areas are dominated by commercial uses that are
surrounded by multifamily and single family residential and open space. Most of the
study areas are within the Old Town Newhall Specific Plan area, which separates urban
center commercial development from corridor commercial development and is reflective
of the transportation -centric history of the area.
The study areas cover about 53.6 acres, with a net parcel area of 33 acres. Of this
about 35.7 percent is community commercial, 50.6 percent is urban center commercial
and 13.7 percent is urban general multifamily development. The areas include a wide
variety of building types and building conditions, although a significant proportion of
them need renovation. While the need for renovation poses a challenge to the
community, it creates the potential for additional redevelopment spurred by projects,
such as this one, that attract new customers to the area.
APPLIED 2
ECONOMICS
Packe[ Pg. 314
FIGURE 2: STUDY AREA ZONING
Specific Plan Zoning
Corrltlor
- Urbanc..w
urban Gwera12
General Plan Zoning
community commemal
2.0 INDIRECT ECONOMIC IMPACTS
The indirect economic impact of this project will be driven by new economic activity from
three primary sources:
• Ancillary expenditures made by new theatre and retail patrons,
• Additional people drawn to the area that utilize the new available parking, and
• Taxable expenditures made by the residents and workers occupying the projects.
In turn, this new economic activity is expected to result in further real estate
redevelopment, which could drive increases in property values and property tax
collections for the City of Santa Clarita and others.
For the first source of new activity, expenditures made by theatre patrons outside the
theatre, the impact is based primarily on information obtained from the theatre operator.
The theatre operator expects about 200,000 patrons per year and assumes each patron
will conservatively spend about $10 outside the theatre, for a total of about $2.0 million
in new sales outside the theatre per year.
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ECONOMICS
Packe[ Pg. 315
However, given the income of the Santa Clarita area residents, the number of
professional businesses and employees in close proximity to the project, and the impact
of the 300 daily Metrolink riders' who will now have a reason to stay in Old Town
Newhall, this analysis uses a rate of $15 per patron. This results in a total of about $3.0
million in new taxable sales made outside the theatre itself, as shown in Table 1. The
analysis also assumes that all of these taxable sales will occur in the five study areas.
TABLE 1: ESTIMATED NON -THEATRE NEW TAXABLE SALES BY SOURCE
Sources
Factors
Assumptions
Economic
Activity
New Taxable
Expenditures
Movie Theatre
Patrons
200,000
Non -Theatre Expenditures/Patron
$15.00
$3,000,000
$3,000,000
Additional Activity
Patrons
870,000
Non -Theatre Expenditures/Patron
$15.00
$/day
$35,700
$13,030,500
New Activity Share
75%
Impact/day
$26,775
$9,772,875
Project Residents
Unit Type Units
Mo. Rent
1 Bedroom 15
$1,720
2 Bedroom 27
$2,315
3 Bedroom 4
$2,818
Total Income(90%Occupancy)
$5,377,158
Local Taxable Expenditures
20%
$1,075,432
New Activity Share
75%
$806,574
Project Employees
Sq. Feet
39,000
Employment
300
$/Employeelday
$5.00
$547,500
$547,500
Total Indirect Impact
$17,656,093
$14,126,949
Sources: Serrano Development Group, Laemmle Theatres LLC; Applied Economics, 2015
In addition to the theatre, the project features at least 350 public parking spaces. An
increase in available public parking, especially for special Main Street events, combined
with the additional exposure to the Old Town Newhall area provided by the theatre, will
have a significant impact on surrounding businesses. The potential sales impact of the
additional parking spaces assumes each space is used 4 times per day, with an
average occupancy of 85 percent, two persons per vehicle and about $15 per person in
associated taxable sales.
1 Southern Califomia Regional Rail Authority, Newhall Station Average Weekday Boardings, 2015.
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ECONOMICS
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3.1
About 75 percent of the sales associated with the new parking spaces are assumed to
be the result of new demand in the project area, as opposed to existing area patrons,
and are expected to generate about $9.7 million in new taxable sales to the City of
Santa Clarita.
Finally, there will be taxable sales made by residents and employees of the project.
With respect to the residents, the 46 residential units in the project are expected to
include households with a total of about $5.4 million per year in income, based on the
unit mix and proposed rental rates. Of this, about 20 percent would likely be spent on
taxable expenditures within the City of Santa Clarita, resulting in approximately $1.1
million per year in additional taxable expenditures as a result of the project. About 75
percent of these expenditures are assumed to result from new residents, thereby
reducing the new taxable sales figure to about $800,000 per year. Based on the type of
businesses in the study areas, it is estimated that only about 25 percent of the $800,000
in new annual taxable sales would occur in the study areas.
With respect to employment, the theatre and associated mixed-use projects are
assumed to employ some 300 workers based on standard employment density rates for
this type of mixed-use development—Each employee is expected to spend about $5.00
per day in taxable sales in the study areas based on BLS consumer expenditure data.
This equates to about $548,000 per year in new taxable expenditures in the Old Town
Newhall area that would not have occurred without the Redevelopment Block Project(s).
All told, the theatre and retail patrons, the associated parking, and project residents and
employees are expected to generate an increase of about $14.1 million in new taxable
sales to the City of Santa Clarita as outlined in Table 1. Of this, about $13.5million is
expected to occur in the Old Town Newhall study areas after the expenditures by
project residents are reduced to account for the market basket of goods that are
available in the study areas.
APPLIED s
ECONOMICS
Packe[ Pg. 317
3-;
3.0 BUSINESS SALES IMPACTS
To measure how the increase in indirect economic activity translates into impacts on
existing local and study area businesses, it is necessary to reduce the indirect taxable
sales estimates to account for the new non -theatre sales within the project. Based on
the financial pro -forma information provided by Serrano Development, new on-site non -
theatre sales of about $7.7 million ($400/sq ft x 19,300 = $7,720,000) per year are
expected, with potential future escalations matching inflation per year.
The new on-site non -theatre sales reduce the $14.1 million impact in annual indirect
taxable sales to a net impact of about $6.4 million per year on existing businesses.
Since about $600,000 of the $800,000 of new taxable sales by residents is not expected x
to occur in the study areas, the annual impact on existing businesses in the Old Town c
Newhall study areas is further reduced to about $5.8 million per year. This $600,000 per m
year would still flow into Santa Clarita businesses, but in categories such as d
automobiles, apparel and household furnishings that are not represented in the study o.
areas. °
d
d
In order to determine how much of the new economic activity the businesses in the
study areas could reasonably benefit from, it was necessary to develop an inventory of
existing businesses in each study area from secondary sources and on-site field work. N
Current employment and sales estimates were developed using information purchased —
from the national research firm InfoUSA, with adjustments based on our field survey and v
sales data provided by HdL Companies, the City of Santa Clarita's tax consultants.
The results of this inventory assessment, summarized in Table 2, show a total of 190
businesses with current employment of about 960 workers and total taxable sales of
about $37.2 million per year. About 45 percent of the businesses fall into the Business &
Industry industrial category, which is largely comprised of personal and business
service providers. While these businesses do not generally have taxable sales, they
tend to employ educated, professional and administrative -type workers with higher than
average salaries — the type of people who tend to patronize Laemmle Theatres.
Of the remaining businesses in the study areas, about 42 percent fall into the Food,
Drug and Restaurant (Food/Restaurant) and Consumer Goods industrial categories.
These are the categories that will benefit most from the indirect economic impacts of the.
project. This includes nearly 90 businesses with current employment of about 320
workers and taxable sales of about $21.8 million per year. The remaining 13 percent of
businesses are in the Automotive and Construction industry categories and have a total
of about $15.4 million per year in taxable sales. Businesses in these categories are not
expected to be significantly impacted by the project's indirect economic impacts,
although some sales as result of increased employment are possible.
As shown in Figure 3, the study areas contain significant concentrations of both large
and small businesses across the Old Town Newhall area. Figure 4 profiles the same
businesses showing their geographic distribution by industrial category. This figure
APPLIED e
ECONOMICS
p'acketpg.38
3-;
clearly shows the greater concentration of businesses in the Automotive,
Food/Restaurant and Consumer Goods industry categories in study areas 1 and 2,
while areas 3, 4 and 5 have more in the Business and Industry category. This
distribution favors capturing the indirect economic impacts in the Old Town Newhall
area nearest to the project, while supporting the project with a strong employment base.
TABLE 2: EXISTING STUDY AREA BUSINESSES BY INDUSTRY CATEGORY
Current
Study Area Total 1
Study
168
$11,422,303
Taxable
Industry Category
Area
Count
Employees
Sales
Automobve
1
8
20
$2,893,012
$11,366,218
2
5
18
$1,922,863
Total
3
2
10
$1,284,000
4
0
0
$0
5
0
0
$0
Total
15
48
$6,099,875
Construction
1
1
4
$1,439,000
2
0
0
$0
3
2
55
$1,964,719
4
5
52
$5,947,956
5
0
0
$0
Total
8
111
$9,351,675
Business & Industry
1
9
52
$0
2
22
127
$0
3
18
97
$0
4
36
163
$0
5
3
30
$0
Total
88
469
$0
Food, Drug, Restaurant & Hotel
1
9
37
$4,189,353
2
8
17
$2,384,553
3
3
39
$1,811,700
4
7
61
$4,785,300
5
0
0
$0
Total
27
154
$13,170,906
Consumer Goods
1
14
55
$2,900,938
2
20
55
$3,235,582
3
11
45
$1,822,763
4
7
22
$632,963
5
0
0
$0
Total
52
177
$8,592,245
Study Area Total 1
41
168
$11,422,303
2
55
217
$7,542,998
3
36
246
$6,883,182
4
55
298
$11,366,218
5
3
30
$0
Total
190
959
$37,214,701
Sources: InfoUSA; City of Santa Clar@a; Applied Economics, 2015
APPLIED 7
ECONOMICS
31
FIGURE 3: STUDY AREA BUSINESSES BY EMPLOYEE COUNT
I 1
' a
Emplouyee Coun[ 0T9 �� ,
• sac � g z�fi
• r9b 19 �f
• zobas � . `�,
a
oW1 2
r� ba9 �
u Ponk � 9 •��
SWtlyAreaa eE
FIGURE 4: STUDY AREA BUSINESSES BY INDUSTRY CATEGORY
Intluatry
• IubmaBn
• m i on ry ion
• ue�wvc 6lnaotlry
• Pootl 6pruyalRorvmmKaXo@h
• Generel Cancunmr Gaetlx
C Po vk
SWtly Arae
®e®
1 2 3 5
APPLIED 8
ECONOMICS
3.1
Both location and industry group were used to show how the $5.8 million per year in
indirect economic impacts of the project could be captured by businesses in Old Town
Newhall. Note that for this purpose, establishments in the Business and Industry
category were excluded since they have very little in taxable sales and they are the only
type of business in study area 5. While not quantifiable, increases in business activity in
the Business and Industry category could result from the project leading to employment
increases that, in turn, could boost sales to other local businesses.
As shown in Table 3, about 94 percent ($4.2 million) of the $5.8 million per year in new
taxable expenditures associated with existing businesses in Old Town Newhall would
be in the Food/Restaurant and Consumer Goods industry categories. Overall, this
translates into a 30.3 percent increase in the Food/Restaurant category and
17.9percent in the Consumer Goods category within the Old Town Newhall study areas.
TABLE 3: INDIRECT IMPACTS ON TAXABLE SALES IN OLD TOWN NEWHALL
Current With Project
Study Taxable Indirect Project Impact Taxable
Industry Category Area Sales Amount Percent Sales
Automotive 1
$2,893,012
$95,065
3.3%
$2,988,078
2
$1,922,863
$42,943
2.2%
$1,965,806
3
$1,284,000
$51,745
4.0%
$1,335,745
4
$0
$0
0.0%
$0
Total
$6,099,875
$189,754
3.1%
$6,289,629
Construction 1
$1,439,000
$43,170
3.0%
$1,482,170
2
$0
$0
0.0%
$0
3
$1,964,719
$0
0.0%
$1,964,719
4
$5,947,956
$43,111
0.7%
$5,991,067
Total
$9,351,675
$86,281
0.9%
$9,437,956
Food, Drug, Restaurant&Hotel 1
$4,189,353
$1,821,035
43.5%
$6,010,388
2
$2,384,553
$881,018
36.9%
$3,265,572
3
$1,811,700
$384,298
21.2%
$2,195,998
4
$4,785,300
$904,575
18.9%
$5,689,875
Total
$13,170,906
$3,990,926
30.3%
$17,161,832
Consumer Goods 1
$2,900,938
$617,175
21.3%
$3,518,112
2
$3,235,582
$631,881
19.5%
$3,867,463
3
$1,822,763
$249,796
13.7%
$2,072,559
4
$632,963
$36,205
5.7%
$669,168
Total
$8,592,245
$1,535,057
17.9%
$10,127,302
Study Area Total 1
$11,422,303
$2,576,445
22.6%
$13,998,748
2
$7,542,998
$1,555,842
20.6%
$9,098,841
3
$6,883,182
$685,839
10.0%
$7,569,021
4
$11,366,218
$983,891
8.7%
$12,350,109
Total
$37,214,701
$5,802,018
15.6%
$43,016,719
Sources: InfoUSA; City of Santa Clams; Applied Economics, 2015
APPLIED 9
ECONOMICS
Packet Pg. 321
31
Impacts on the Automotive and Construction industry categories are limited by the type
of consumer spending expected to result from the project, however, some increases are
possible. The significant concentration of automotive -related businesses in study areas
1 and 2 would likely receive a small boost in sales due to the increased number of
potential consumers being attracted to the Old Town Newhall area.
The greatest impacts would occur among the businesses in closest proximity to the
project(s). Total impacts range from about 22.6 percent in study area 1 to about 8.7
percent in study area 4, and result in an overall 15.6 percent increase in taxable sales at
existing businesses in the Old Town Newhall study areas.
The impacts by industry category vary greatly by study area based on the industrial
composition of businesses. The largest impact will be in the Food/Restaurant category,
with impacts ranging from about 43.5 percent in study area 1 to about 18.9 percent in
study area 4, resulting in an overall increase in taxable sales of 30.3 percent. In the next
largest industry category of impact, Consumer Goods, the impacts range from 21.3
percent in study area 1 to 5.7 percent in study area 4. This results in a total increase of
about 17.9 percent in the Consumer Goods industrial category.
4.0 PROPERTY VALUE IMPACTS
In addition to its impacts on economic activity and taxable sales, the Redevelopment
Block project(s) will have a positive impact on the value of other properties in the
immediate area and could help induce other property impacts through redevelopment.
While any increases in property values may not immediately translate into additional
property tax revenues, due to Proposition 13 and other supporting legislation limiting
value growth, it is reasonable to assume that over time the value of a commercial
property is directly related to its ability to generate revenue. Therefore, for this study the
projection of property value increases resulting from the project are linked to the sales
increases by type of property and study area.
The first step in determining how such value increases affect increased property value
and property tax revenue was to compile an inventory of existing properties by study
area from Los Angeles County Assessor's parcel data. This inventory included land
area, improvement square footage, improvement age, land value and improvement
value, as shown in Table 4. Combined, the study areas contain about 33 acres of land
valued at $35.7 million and about 526,000 square feet of improvements valued at $24.6
million. This results in an average value of about $1.0 million per acre and $47 per
square foot of built space. Both the land and improvement values are about half of what
could be realized through redevelopment and a transference of ownership. The fact that
the land is worth more than the value of the improvements is indicative of an area that is
prime for redevelopment.
APPLIED ro
ECONOMICS
As shown in Figure 5, each of the five study areas contain numerous land parcels
valued at $750,000 per acre or less, which is well below market value. In addition,
Figure 6 shows that building values of $40 per square foot or less are prevalent in study
areas 1, 2 and 4, which further supports the potential for redevelopment.
TABLE 4: LAND AND IMPROVEMENT VALUES IN OLD TOWN NEWHALL
Study
Building
Improvement
Land Value
Improvement
Area
Acres
Land Value
Area (SF)
Value
per Acre
per Sq.
Ft.
Area 1
6.7
$5,303,136
93,999
$4,657,770
$794,596
$49.55
Areal
11.5
$15,425,432
212,372
$9,324,775
$1,340,177
$43.91
Area 3
6.4
$5,998,250
97,750
$7,727,335
$934,016
$79.05
Area 4
5.2
$7,405,294
94,570
$2,276,823
$1,432,636
$24.08
Area
3.2
$1,606,891
27,746
$663,150
$495,495
$23.90
Total
33.0
$35,739,003
526,437
$24,649,853
$1,082,410
$46.82
Sources: Los Angeles County Assessor's Office; Applied Economics, 2015.
FIGURE 5: STUDY AREA PARCEL LAND VALUES
4 --
Lead—
Lead Value Per Acro
Less1—$11U o
$350000-5]50000
$7590W -S1 2sOeN
$1250000-$20W 000
- More Than 52,000000
WA
APPLIED LL
ECONOMICS
Packe[ Pg. 323
FIGURE 6: STUDY AREA IMPROVEMENT VALUES
Building Value Per SF
- Less Ina,$ts
$1sto$d0
$no m $.
$10 m $m
F Mme Th., SW
WA
Applying value increases by study area and type of use results in about a $6.6 million
increase in property values as a result of the project, as shown in Table 5. For
commercial properties, the percentage increase is based on the increase in sales by
study area, which range from 9.8 percent in study area 1 to 3.0 percent in area 4. In the
case of residential properties, the value increases were based on existing values and
proximity to the proposed project and were assumed to be 5.0 percent in study area 1,
2.0 percent in study areas 2 and 3, and zero in study areas 4 and 5.
110:14=A7911:11=1031 S]9A_11UZ11UlIih1=10]9=11V1411IllRII*�
Sources: Los Angeles County Assessor's Office; Applied Economics, 2015.
APPLIED Lz
ECONOMICS
Packet Pg. 324
With Project
With Project
Value
Area
Acres
Land Value
Improvement Value
Increase
Area 1
6.7
$6,207,310
$7,987,027
$4,233,432
Areal
11.5
$16,488,254
$9,891,032
$1,629,079
Area
6.4
$6,207,310
$7,987,027
$468,753
Area
5.2
$7,627,453
$2,345,128
$290,464
Area
3.2
$1,606,891
$663,150
$0
Total
33.0
$38,137,218
$28,873,365
$6,621,727
Sources: Los Angeles County Assessor's Office; Applied Economics, 2015.
APPLIED Lz
ECONOMICS
Packet Pg. 324
3-;
In addition to the value increases of existing properties, it is likely that the project will
cause, or partially cause, redevelopment of properties in the surrounding area given
their age, condition, quality and compatibility with future uses. Based on an assessment
of the properties immediately surrounding the project, it is estimated that property
values in Old Town Newhall could increase by another $2.3 to $4.6 million due to
redevelopment. The range is driven not only by market demand, but also by the
willingness of adjacent land owners to embrace redevelopment. Because of this
uncertainty, a mid -point estimate of $3.4 million in increased property value from
redevelopment is used in this study.
5.0 REVENUE IMPACTS
Y
U
The indirect revenue impacts associated with the project are based on net new taxable Om
sales and increases in property values. As shown in Table 6, the project results in E
about $6.4 million per year in net new taxable sales in the City of Santa Clarita. About o.
$5.8 million per year would occur within the Old Town Newhall study areas, with the O
balance occurring elsewhere in the City. Within the Old Town Newhall study areas, over d
70 percent of the increase is likely to occur in study area(s) 1 and 2. Based on the City's d
1 percent tax rate (out the total 9 percent in sales tax), these new sales would result in
about $64,000 per year of additional revenue to the City of Santa Clarita. This would be N
in addition to the $81,700 in sales tax projected for the first operating year of the
projects. The indirect impact could be expected to grow by 3 to 4 percent per year, v
consistent with the forecasts prepared by the developer for the project itself.
w
m
TABLE 6: INDIRECT SALES TAX IMPACTS
Source: Applied Economics, 2015.
" Based on a City sales tax rate of 1
In the case of property tax, the indirect impact is based on increases in values across
the study areas commensurate with the increase in sales volumes, as well as from
potential redevelopment activity. Table 7 shows property value increases of about $6.6
million for existing properties and another $3.4 million resulting from redevelopment.
The total property value increase of about $10.0 million would result in about $14,900
APPLIED 13
ECONOMICS
t3ag7eet:Pg.325
Annual
Annual
Taxable
Sales
Area
Sales
Tax
Old Town Newhall
$5,802,018
$58,020
Study Areal
$2,576,445
$25,764
Study Areal
$1,555,842
$15,558
Study Area
$685,839
$6,858
Study Area
$983,891
$9,839
Study Area
$0
$0
Elsewhere in Santa Clarks
$604,930
$6,049
Total
$6,406,948
$64,069
Source: Applied Economics, 2015.
" Based on a City sales tax rate of 1
In the case of property tax, the indirect impact is based on increases in values across
the study areas commensurate with the increase in sales volumes, as well as from
potential redevelopment activity. Table 7 shows property value increases of about $6.6
million for existing properties and another $3.4 million resulting from redevelopment.
The total property value increase of about $10.0 million would result in about $14,900
APPLIED 13
ECONOMICS
t3ag7eet:Pg.325
3.j
per year in net new property tax to the City of Santa Clarita. This would be in addition to
the $35,000 per year in property tax generated by the project itself in the first year, as
projected by the developer.
Together, the indirect sales and property tax impacts of the Redevelopment Block
Project(s) could result in about $44,000 of net new revenue to the City of Santa Clarita
annually. This is equal to about half of the revenue impacts associated with the project
itself.
TABLE 7: INDIRECT PROPERTY TAX IMPACTS
Property Annual
City of Santa Clarita. x
APPLIED 14
ECONOMICS
Packe[ Pg. 326
Value
Property
Area
Impacts
Tax"
Y
c
Existing Properties
$6,621,727
$9,823
00
Study Areal
$4,233,432
$6,280
d
Study Areal
$1,629,079
$2,417
E
a
Study Area
$468,753
$695
°
Study Area
$290,464
$431
d
d
Study Areas
$0
$0
d
rc
Redevelopment
$3,400,000
$5,044
N
Total
$10,021,727
$14,867
Source: Applied Economics, 2015.
a
" Based on tax rate of 1.21 % with 12.26
percent of that going
to the
w
City of Santa Clarita. x
APPLIED 14
ECONOMICS
Packe[ Pg. 326